This section contains the nature of the case and procedural background.

Ps were employed by D a wholesale grocery warehouse and distribution center. D owned fifty percent of United Supermarkets, which also happened to be D's largest customer. D and United had a satisfactory thirty-one-year business relationship with United Supermarkets providing forty percent of D's orders. At times, D fell short of United's submitted orders. By January 7, 2004, stockouts had reached an 'all-time high' of 53.8%. United still had not decided to end the relationship. During this same period, D was awaiting approval of a $15 million working capital loan from LaSalle Bank. Eventually, LaSalle declined to approve the funding. On January 8, 2004, United wrote to let D know that United would have to 'place orders with alternative suppliers,' but also reiterated its willingness to continue doing business with D despite the stockouts. On January 15, 2004, United wrote to D, informing D of the difficult decision it had made to 'use Affiliated Foods as its primary supplier, with D as a secondary supplier. D knew the business was in deep trouble. D met with F&M Bank, its primary accounts holder, as well as consultants Alvarez & Marsal, on Tuesday, January 20. D 'decided that [it] was not going to be able to survive.' On January 21, 2004, D met with office personnel and later warehouse staff, informing them of the impending layoffs. D was going to lay off 200 people. On Thursday, January 22, 2004, D informed employees by letter that they would be laid off, citing as the reason the loss of United as its primary customer. D later filed for bankruptcy. Ps brought this action and D moved for summary judgment on the basis that it was excused from the WARN Act requirements based upon the unforeseeable business circumstance exception, 29 U.S.C. § 2102(b)(2)(A); 20 C.F.R. § 639.9(b), and the faltering company exception, 29 U.S.C. § 2102(b)(1); 20 C.F.R. § 639.9(a). The district court granted summary judgment holding that United's termination of D was unforeseeable and caused the mass layoffs and that D had provided notice 'as soon as practicable.' Ps appealed.

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