623 F.Supp. 1505 (1985)
Margaret F. SAVAGE and Independent Haulers, Inc., Plaintiffs,
v.
WASTE MANAGEMENT, INC.; Waste Management of South Carolina, Inc., Defendants.
Civ. A. No. 2:82-3263-1.
United States District Court, D. South Carolina, Charleston Division.
December 19, 1985.
*1506 James H. Moss, Beaufort, S.C., and Harry A. Swagart, III, Columbia, S.C., for plaintiffs.
Edward L. Michael, Joseph V. Giffin, and John E. Noel, Chicago, Ill., and Joab M. Dowling, Jr., Beaufort, S.C., for defendants.

ORDER AND JUDGMENT
HAWKINS, District Judge.
This action is before the court on motion of defendants Waste Management, Inc. (hereinafter WMI) and Waste Management of South Carolina, Inc. (hereinafter WMSC) for summary judgment as to plaintiffs' second amended complaint, on defendant WMSC's motion for summary judgment on its counterclaim and on the plaintiffs' motion for summary judgment as to Count VII of their second amended complaint and motion for partial summary judgment, including a cross-motion for summary judgment as to WMSC's counterclaim. The issue presented in the motions, except those regarding the counterclaim, is whether the allegedly anticompetitive acts attributed to the defendants are shielded from federal antitrust liability by the "state action" doctrine first enunciated by the Supreme Court in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943).
The plaintiffs allege that Beaufort County, Beaufort County Council, Waste Management of South Carolina, Inc. and Waste Management, Inc. violated Sections 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1 and 2, by entering into and performing under contracts for the exclusive collection and disposal of garbage in certain areas of the county.[1] Second Amended Complaint (filed June 29, 1985). In addition, the plaintiffs allege that these actions violated a Beaufort County ordinance and South Carolina antitrust laws.
Oral arguments on these motions were heard on October 3, 1985, at which time the motions were taken under advisement. The court has now reviewed those arguments, the motions and briefs of counsel, and makes the following rulings.

I. THE SUMMARY JUDGMENT STANDARD
In order to obtain summary judgment, a party must demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. In First National Bank v. Cities Services Co., 391 U.S. 253, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968), the Supreme Court made it clear that summary judgment is an important tool in antitrust litigation. The Court stated that "a party cannot rest on the allegations contained in his complaint in opposition to a properly supported summary judgment motion made against him" (391 U.S. at 289, 88 S.Ct. at 1592) and that:

*1507 While we recognize the importance of preserving litigants' rights to a trial on their claims, we are not prepared to extend those rights to the point of requiring that anyone who files an antitrust complaint setting forth a valid cause of action be entitled to a full-dress trial notwithstanding the absence of any significant probative evidence tending to support the complaint.
391 U.S. at 290, 88 S.Ct. at 1593. See also, Ottensmeyer v. Chesapeake & Potomac Telephone Company of Maryland, 756 F.2d 986 (4th Cir.1985) (summary judgment against plaintiff affirmed in Sherman § 1 case); Stearns v. Genrad, Inc., 752 F.2d 942 (4th Cir.1985) (summary judgment against plaintiff affirmed on claim of attempted monopolization); Universal Lite Distributors, Inc. v. Northwest Industries, Inc., 602 F.2d 1173 (4th Cir.1979) (summary judgment against plaintiff affirmed on Sherman § 1 claim); Kendall Elevator Co., Inc. v. LBC & W Associates of South Carolina, Inc., 350 F.Supp. 75 (D.S.C.1972) (summary judgment granted in favor of defendant on Sherman § 1 claim).
This court is aware that Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), decided before the Supreme Court's decision in Cities Service, supra, is frequently cited for the proposition that summary judgment is to be granted sparingly in antitrust cases. E.g., see this court's opinion in Trident Neuro-Imaging Laboratory v. Blue Cross, 568 F.Supp. 1474, 1478-79 (D.S.C.1983). However, Poller is plainly not a bar to granting summary judgment in antitrust cases as is made clear by the Fourth Circuit cases cited in the above text and by numerous decisions from other circuits. See also, Trident Neuro-Imaging Laboratory v. Blue Cross, 1983-2 Trade Cases (CCH) ¶ 65,674 (D.S.C.1982), where this court granted summary judgment in an antitrust case. Moreover, the statements in the Poller case are of questionable validity in light of the Supreme Court's subsequent decision in the Cities Service case, see Legal Times, Vol. V, No. 36 (Feb. 14, 1983). Indeed, some courts have held that "the very nature of antitrust litigation would encourage summary disposition of such cases where permissible ... antitrust trials often encompass a great deal of expensive and time consuming discovery and trial work ... [and] the statutory private antitrust remedy affords a special temptation for institution of vexatious litigation...." Lupia v. Stella D'Oro Biscuit Co., Inc., 586 F.2d 1163, 1167 (7th Cir. 1978), cert. denied, 440 U.S. 982, 99 S.Ct. 1791, 60 L.Ed.2d 242 (1979) (emphasis added).
Summary judgment is particularly appropriate when, as here, all discovery on the key issues has been completed. In this posture, a motion for summary judgment is more like a motion for directed verdict since all of the evidence of the parties on the key issues is before the court. In Sun Valley Disposal Co., Inc. v. Silver State Disposal Co., 1970 Trade Cases (CCH), ¶ 73,028 (D.Nev.1968), aff'd, 420 F.2d 341 (9th Cir.1969), for example, the court noted that, as in this case, discovery had been completed and all of the plaintiff's "cards were on the table." In granting summary judgment for defendants on plaintiff's complaint (including claims of antitrust conspiracy in the granting of an exclusive refuse collection franchise), the court explained that
[t]he "Golden Fleece" of treble damages plus attorneys' fees and costs has led the diligent, aggressive lawyer to adopt the language of monopoly and restraint of trade to all varieties of normal, standard and customary business transactions. While such expertise in legal composition may withstand a motion to dismiss, it does not require or justify judicial submission to the descriptive language of the pleadings when the facts are laid bare.
1970 Trade Cases (CCH) at ¶ 88,030. See also, Universal Lite Distributors, Inc. v. *1508 Northwest Industries, Inc., 452 F.Supp. 1206, 1210 (D.Md.1978), aff'd in part, 602 F.2d 1173 (4th Cir.1979) (granting summary judgment on plaintiff's complaint, including antitrust conspiracy claim, after three years of extensive discovery had been completed); Ralph C. Wilson Industries v. American Broadcasting Companies, 598 F.Supp. 694, 700 (N.D.Cal.1984) (given extensive discovery and fully developed record, the court treated motion for summary judgment as motion for directed verdict with assumption that all evidence available to plaintiff would be admitted at trial, and granted summary judgment in defendants' favor); Humboldt Bay Municipal Water v. Louisiana  Pacific Corp., 608 F.Supp. 562 (N.D.Cal.1985) (granting summary judgment in defendants' favor on basis of fully developed record after extensive discovery).
When tested by these principles, the undisputed facts clearly show that WMSC and WMI are entitled, as a matter of law, to judgment in their favor on plaintiffs' complaint.

II. COUNTY IMMUNITY[2]
The Supreme Court has recently reiterated that a municipality is immune from antitrust liability when "engaging in the challenged activity pursuant to a clearly expressed state policy." Town of Hallie v. City of Eau Claire, ___ U.S. ___, 105 S.Ct. 1713, 1717, 85 L.Ed.2d 24 (1985). This requirement is satisfied when the conduct at issue is a "foreseeable result" of regulatory activity authorized by the state. Id. 105 S.Ct. at 1718.
The Court noted that "[i]t is not necessary ... for the state legislature to have stated explicitly that it expected the City to engage in conduct that would have anticompetitive effects." Id. at 1718. It is only necessary that "the State as sovereign clearly intends to displace competition in a particular field with a regulatory structure." Southern Motor Carriers Rate Conference v. U.S., ___ U.S. ___, 105 S.Ct. 1721, 1731, 85 L.Ed.2d 36 (1985). Furthermore, the Court held that a city need not demonstrate that the state compelled or actively supervised its allegedly anticompetitive conduct. Town of Hallie v. City of Eau Claire, 105 S.Ct. at 1715, 1720.
In this case, Beaufort County claims to have acted pursuant to South Carolina Code Ann. § 44-55-1010 (1976) et seq. See Memorandum in Support of Defendants' Motion for Summary Judgment at 49-52 (filed June 27, 1985). These statutes provide that a county "may regulate the collection and disposal of garbage in accordance with the provisions of this article." S.C. CODE ANN. § 44-55-1010. "Collection or disposal of garbage without a license [from the county] is unlawful." S.C.CODE ANN. § 44-55-1030. Most importantly, the county "may call for bids for the right to collect and dispose of garbage or may issue to one or more persons on such terms as it shall fix the right or franchise to collect and dispose of garbage not inconsistent with the provisions of this article." S.C. CODE ANN. § 44-55-1040 (emphasis added). Finally, the County Health Department is to exercise supervision over the manner of collection and disposal of garbage. S.C.CODE ANN. § 44-55-1050.
It is clear that the policy underlying these statutes is to give counties the choice of whether or not to regulate the collection and disposal of garbage under the provisions of this article. S.C.CODE ANN. § 44-55-1010 et seq. The legislature surely contemplated that one means of implementing this policy, consistent with S.C. CODE ANN. § 44-55-1040, might be to award exclusive contracts for the collection and disposal of garbage in certain areas of Beaufort County. In Town of Hallie, the Supreme Court made it clear that it is "not necessary ... for the state legislature to *1509 have stated explicitly that it expected the City to engage in conduct that would have anticompetitive effects...." Rather, it is sufficient that the statutes authorize the City to provide the services in question and "clearly contemplate that a city may engage in anticompetitive conduct." 105 S.Ct. at 1718 (emphasis added). See also, Gold Cross Ambulance & Tran. v. City of Kansas City, 705 F.2d 1005, 1013 (8th Cir. 1983) ("one or more" term in statute held to authorize award of exclusive contracts for purposes of State Action immunity); Tom Hudson & Associates, v. City of Chula Vista, 746 F.2d 1370 (9th Cir.1984) (statute authorizing cities to determine "whether or not" refuse services would be provided by means of exclusive franchise held to be "clear articulation" of state policy even though not mandatory by its terms). Finally, authorization by the State of South Carolina is consistent with the "traditional" view that refuse collection and disposal is a local governmental function, and it is consistent with a long line of cases which have upheld the authority of local governments to grant to private parties the exclusive right to collect and dispose of refuse. See 56 Am.Jur.2d Municipal Corporations §§ 457, 462, 513; Cen. Iowa Ref. Sys. v. Des Moines Metro. Sol. Waste, 715 F.2d 419 (8th Cir.1983), cert. denied, ___ U.S. ___, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985); Hybud Equipment Corp. v. City of Akron, 742 F.2d 949 (6th Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 1866, 85 L.Ed.2d 160 (1985).
The plaintiffs contend that "the statutory language is neutral as to the displacement of competition." See Primary Memorandum of Law in Support of Plaintiffs' Motion for Partial Summary Judgment at pp. 4, 10 (filed Aug. 20, 1985). They also contend "there is no indication that the legislature contemplated awarding exclusive rights and franchises." Id. The Supreme Court rejected these same arguments in Town of Hallie, stating:
It is not necessary, as the Towns contend, for the state legislature to have stated explicitly that it expected the City to engage in conduct that would have anticompetitive effects. Applying the analysis of City of Lafayette, 435 U.S. 389 [98 S.Ct. 1123, 55 L.Ed.2d 364] (1978), it is sufficient that the statutes authorized the City to provide sewage services and also to determine the areas to be served. We think it is clear that anticompetitive effects logically would result from this broad authority to regulate.
....
... [T]he State has specifically authorized Wisconsin cities to provide sewage services and has delegated to the cities the express authority to take action that foreseeably will result in anticompetitive effects. No reasonable argument can be made that these statutes are neutral in the same way that Colorado's Home Rule Amendment was.
105 S.Ct. at 1718-19 (emphasis added). Finally, the Court rejected the Town's argument that the state action exemption should not be applicable unless the State "compelled" the City to engage in the alleged anticompetitive activity and "actively supervised" the City:
None of our cases involving the application of the state action exemption to a municipality has required that compulsion be shown.... In short, although compulsion affirmatively expressed may be the best evidence of state policy, it is by no means a prerequisite to a finding that a municipality acted pursuant to clearly articulated state policy.
....
Once it is clear that state authorization exists, there is no need to require the State to supervise actively the municipality's execution of what is a properly delegated function.
105 S.Ct. at 1720-1.
This court finds that S.C.CODE ANN. § 44-55-1010 (1976) et seq. sufficiently *1510 demonstrate a clear state policy authorizing counties to regulate the collection and disposal of garbage within their borders. In addition, since counties are expressly authorized to grant franchises to "one or more persons" (emphasis added), the State obviously "contemplated" that counties could grant exclusive contracts or franchises for garbage collection and disposal.
In sum, this court finds that Beaufort County and Beaufort County Council acted pursuant to a clearly articulated state policy in granting to the defendants an exclusive franchise for the collection and disposal of garbage in specified areas of Beaufort County. Accordingly, Beaufort County is immune from federal antitrust liability under the "state action" doctrine. As noted earlier, Beaufort County need not demonstrate that the state actively supervised the negotiation or implementation of the contracts at issue in this case. See Town of Hallie, 105 S.Ct. at 1720.

III. PRIVATE PARTIES
The Supreme Court has held that the actions of private parties are exempt from federal antitrust liability if they are undertaken pursuant to a clearly articulated state policy and are supervised actively by the state. See Southern Motor Carriers Rate Conference v. U.S., 105 S.Ct. at 1729; Cal. Retail Liquor Dealers Ass'n v. Midcal Alum., 445 U.S. 97, 105-06, 100 S.Ct. 937, 943, 63 L.Ed.2d 233 (1980).
The court has already found that the first prong of this test is satisfied in the circumstances of this case because S.C. CODE ANN. § 44-55-1010 et seq. clearly authorize the challenged activities.
The plaintiffs contend that the second prong of this test can only be satisfied by the state actively supervising the actions of private parties (the defendants in this case). Plaintiffs have quoted from three cases in support of their position, but these cases are factually distinguishable. The quotes appear on page 5 of the Primary Memorandum of Law in Support of Plaintiffs' Motion for Partial Summary Judgment and read as follows:
In Town of Hallie the Supreme Court stated that
Where state or municipal regulation of a private party is involved ..., active state supervision must be shown, even where a clearly articulated state policy exists.
105 S.Ct. at 1720 n. 10 (emphasis added). The purpose of requiring active state supervision of the regulation of private parties is to prevent
(s)tates from "casting ... a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement." Midcal, 445 U.S. at 106 [100 S.Ct. at 943.] This active supervision requirement ensures that a state's actions will immunize the anticompetitive conduct of private parties only when the "state has demonstrated its commitment to a program through its exercise of regulatory oversight." See 1 P. Areeda & D. Turner, Antitrust Law ¶ 213a, p. 73 (1978).

Southern Motor Carriers, 105 S.Ct. 1729 n. 23.
The quote in Town of Hallie is taken from Southern Motor Carriers, 105 S.Ct. at 1727. In Southern Motor Carriers active state supervision was required, but only because the legislatures of the four states involved had decided that the private parties in that particular case (rate bureaus composed of motor common carriers) would be supervised by state agencies, namely their public service commissions. Therefore, Southern Motor Carriers was not a case in which a municipality was supposed to supervise the actions of a private party.
The second quote also appears in Town of Hallie, but is taken from Midcal 445 U.S. at 106, 100 S.Ct. at 943. Once again, in Midcal a state agency was supposed to be supervising private parties engaged in *1511 wine sales. However, the issue there was not who was supposed to supervise the private parties (the state was, according to the statute), but how much supervision was required for the private parties to be immune from federal antitrust laws under the "state action" doctrine. This case involves only the level of supervision that is required for a private party to be immune from federal antitrust laws. The court held that the state's supervision was passive only and, therefore, inadequate for "state action" immunity. It does not mandate that the state must always supervise private parties. The statute there made it plain that the state is to supervise private parties, while in our case S.C.CODE ANN. §§ 44-55-1040, 1050, make it clear that the county and the respective county health departments are to supervise those involved in the garbage collection and disposal business.
The final quote is also taken from Southern Motor Carriers, and it supports the reasoning heretofore given: once a state decides to supervise certain private parties, active supervision is required to "immunize the anticompetitive conduct of private parties" (emphasis added). This quote does not say that it must always be the state supervising private parties. What it says is that when a state chooses to supervise certain private parties, it must be active supervision for the private parties to enjoy immunity from federal antitrust laws under the "state action" doctrine.
The plaintiffs also contend that
[s]econd, there are no state statutes and/or agencies which provide guidance to counties with respect to such matters as determining (1) how many refuse collectors or landfill operators there may be, (2) how those collectors and operators will be selected, (3) what rates the collectors and operators may charge and (4) how those rates are to be determined.
Third, § 44-55-1050 provides that the county health department shall enforce the article on garbage collection and removal. This provision clearly demonstrates that the State not only does not supervise the actions of the counties taken pursuant to the article, but has expressly abdicated all responsibility for supervision.
The plaintiffs conclude this argument by claiming that even if state supervision could somehow be supplied by county governments, there is no evidence of county supervision in this case. See Primary Memorandum in Support of Plaintiffs' Motion for Partial Summary Judgment at pp. 6-9. These allegations are simply not true. Section 44-55-1040 of the South Carolina Code, annotated, says "one or more persons" may "collect and dispose of garbage." The person or persons are to be selected by "the governing body" of the county, i.e. county council. The franchise shall be "on such terms as it [county council] shall fix." In fact, the rate charged by the defendants for each ton of refuse dumped at the landfill is significantly less than what the county charged when it operated the landfill just prior to the defendants taking over. See Memorandum in Support of Defendants' Motion for Summary Judgment at pp. 14-15.
As to the actual collection and disposal of garbage, it is true that South Carolina has seen fit to delegate supervision to the respective county health departments. Garbage collection and disposal is traditionally a local function of government and "requiring state supervision could force the state and its municipalities to engage in duplicative, wasteful regulation and could erode the local autonomy that the state has sought to encourage." Town of Hallie, 700 F.2d at 384.
Furthermore, "[o]nce it is clear that state authorization exists, there is no need to require the State to supervise actively the municipality's execution of what is a properly delegated function." Town of Hallie, 105 S.Ct. at 1721. Section 44-55-1210 of the South Carolina Code, annotated, allows each county to collect and dispose of garbage *1512 itself or "contract with private agencies" to accomplish the job as their employees. It makes little sense to require state supervision of a contract between the county and a private party when no such supervision is required if the county does the work itself or hires private employees to do the work. This is a properly delegated local function of government which the county actively supervises.
Defendants point out that the Supreme Court's decision in Town of Hallie "is thus consistent with many decisions by Courts of Appeals which have held that State supervision is not required if a local government is authorized to take anticompetitive actions." See Town of Hallie v. City of Eau Claire, 700 F.2d 376 (7th Cir.1983), aff'd, ___ U.S. ___, 105 S.Ct. 1713, 85 L.Ed.2d 24 (1985); Gold Cross Ambulance & Tran. v. City of Kansas City, 705 F.2d 1005 (8th Cir.1983), cert. denied, ___ U.S. ___, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985) ("regulation by the City itself satisfies the active supervision requirement ... since its regulation of ambulance service is exercised under the authorization and direction of state policy.") (emphasis added); Cen. Iowa Ref. Sys. v. Des Moines Metro. Sol. Waste, 715 F.2d 419 (8th Cir.1983), cert. denied, ___ U.S. ___, 105 S.Ct. 1864, 85 L.Ed.2d 158 (1985); Pueblo Aircraft Service, Inc. v. City of Pueblo, 679 F.2d 805 (10th Cir.1982), cert. denied, 459 U.S. 1126, 103 S.Ct. 762, 74 L.Ed.2d 977 (1983); Tom Hudson & Associates v. City of Chula Vista, 746 F.2d 1370 (9th Cir.1984), cert. denied, ___ U.S. ___, 105 S.Ct. 3503, 87 L.Ed.2d 634 (1985). "And, when the local governmental unit contracts with a private party, the supervision of the private party is supplied by the local governmental unit itself." E.g., Tom Hudson & Associates, 746 F.2d at 1373-4; Gold Cross Ambulance, 705 F.2d at 1014. See Memorandum in Support of Defendants' Motion for Summary Judgment at pp. 52-3.
Defendants point out that in the present case it is undisputed that the County actively supervised WMSC's performance under the franchise, the green box contract and the landfill contract. The franchise gives defendants the exclusive right to collect garbage in certain areas of Beaufort County. The green box contract specifies the terms of the garbage collection arrangement between the defendants and the County. The landfill contract governs the disposal of the garbage. The provisions of these contracts establish the County's right to actively supervise WMSC.[3] In addition, the persons involved on behalf of the County and of WMSC testified to active supervision by the County (Haigh deposition, pp. 168-70, A-1; West deposition, pp. 26-27, A-5).[4] There is no evidence to the contrary.
This court finds that "[t]he official supervision of the [defendants] in this case is at least equivalent in degree to the official supervision of private defendants that was deemed sufficient in Southern Motor *1513 Carriers Rate Conference, Inc. v. United States, supra, and Gold Cross Ambulance & Transfer v. City of Kansas City, supra." See Trinity Ambulance Service v. G & L Ambulance Service, 625 F.Supp. 142 1985-2 Trade Cases (CCH) ¶ 66,844 (D.Conn.1985).
Finally, the plaintiffs also allege that the defendants conspired with Beaufort County officials to restrain trade, fix prices and monopolize the garbage collection and disposal business in certain areas of Beaufort County. The discussion at 612-13 in the case of Independent Taxi, Etc. v. Greater Houston, Etc., 760 F.2d 607, 613 (5th Cir.1985), addresses the plaintiffs' conspiracy allegations appropriately:
We need not pause long over appellants' contention that, even if the City is immune from federal antitrust scrutiny under Parker, Yellow can be held liable under the Sherman and Clayton Acts for its efforts in securing the exclusive airport taxicab concession from Houston. On appellants' view, the Noerr-Pennington doctrine[5] cannot shield Yellow because (1) the doctrine applies only to "specific attempts to influence public officials, legislation or executive action" rather than to "arm's length contractual negotiations," and (2) even if a private party's arms's length contractual activity does implicate the doctrine, Yellow's relationship with the City falls within a "commercial exception" to Noerr-Pennington immunity.
"The Noerr-Pennington doctrine provides an exception to antitrust liability enabling citizens or business entities to influence or to petition public officials to take official action that will harm or eliminate competition." Affiliated Capital Corp. v. City of Houston, 735 F.2d 1555, 1566 (5th Cir.1984) (en banc), petition for cert. filed sub nom. Gulf Coast Cable Television Co. v. Affiliated Capital Corp., ___ U.S. ___, 105 S.Ct. 1164, 84 L.Ed.2d 316 (1984). In Greenwood Utilities Commission v. Mississippi Power Co., 751 F.2d 1484 (5th Cir.1985), we recently held that Noerr-Pennington extends to situations where the government enters into a contractual relationship with a private entity, at least in situations "where the government engages in a policy decision and at the same time acts as a participant in the marketplace." Id. at 1505 (footnote omitted). "We expressly rejected the notion that Noerr-Pennington's first amendment and statutory roots are not sympathetic to such agreements, even if they can be properly characterized as essentially commercial." Id. at 1504-06; cf. Mid-Texas Communications Systems, Inc. v. AT & T, 615 F.2d 1372, 1382-84 (5th Cir.), cert. denied, 449 U.S. 912, 101 S.Ct. 286, 66 L.Ed.2d 140 (1980). Viewing the record in the light most favorable to appellants, the most that can be said is that Yellow secured from the City an exclusive concession whose anticompetitive effects stem primarily from a valid municipal, and vicariously state, policy.
The Fifth Circuit court dismissed another allegation of the plaintiffs in a footnote, as follows:
Appellants also argue that Yellow's conduct falls within either the sham or co-conspirator exception to Noerr-Pennington. See, e.g., California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508, 511-15, 92 S.Ct. 609, 612-14, 30 L.Ed.2d 642 (1972); Affiliated Capital Corp. v. City of Houston, 735 *1514 F.2d 1555, 1567 (5th Cir.1984) (en banc), petition for cert. filed sub nom. Gulf Coast Cable Television Co. v. Affiliated Capital Corp., ___ U.S. ___, 105 S.Ct. 1164, 84 L.Ed.2d 316 (1984); Coastal States Mktg., Inc. v. Hunt, 694 F.2d 1358, 1368-73 (5th Cir.1983); Woods Exploration & Producing Co. v. Aluminum Co. of Am., 438 F.2d 1286, 1296-98 (5th Cir.1971), cert. denied, 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972). See generally 1 P. Areeda & D. Turner, Antitrust Law ¶¶ 203-04 (1978 & Supp. 1982). We find little support for the point, regardless of which branch of "sham" is asserted. See generally Coastal States, 694 F.2d at 1371 n. 42. Appellants have cited nothing in the record other than an allegation in their initial complaint that the defendants conspired to monopolize. See Record vol. 4, at 832-34. To the contrary, appellants conceded in their main brief that "[Yellow's] negotiations with respect to the subject exclusive concession agreement was [sic] undertaken at arm's length...." Brief for Appellant Arrow at 46; Brief for Appellant Independents at 45-46. Thus, while the existence or nonexistence of shamful conduct is generally a question of fact for the jury, Feminist Women's Health Center v. Mohammad, 586 F.2d 530, 543 (5th Cir.1978), cert. denied, 444 U.S. 924, 100 S.Ct. 262, 62 L.Ed.2d 180 (1979), appellants have nonetheless failed to present enough evidence to survive Yellow's motion for summary judgment. Cf. Metro Cable Co. v. CATV of Rockford, Inc., 516 F.2d 220, 228-32 (7th Cir.1975) (holding that agreement of government official to petitioning entity's anticompetitive plan was insufficient to render the official a "co-conspirator" for purposes of undermining Noerr-Pennington immunity). But cf. Duke & Co., Inc. v. Foerster, 521 F.2d 1277, 1282 (3d Cir.1975) ("Where the complaint goes beyond mere allegations of official persuasion by anticompetitive lobbying and claims official participation with private individuals in a scheme to restrain trade, the Noerr-Pennington doctrine is inapplicable.").
Independent Taxi, 760 F.2d at 612-3.
This court finds the reasoning in Independent Taxi to be fully applicable in dismissing plaintiffs' allegations of conspiracy to restrain competition. Despite extensive discovery, plaintiffs have failed to establish any facts which would indicate a conspiracy existed and can only continue to point to innocuous, unrelated facts as a basis for this charge. See Memorandum in Support of Defendants' Motion for Summary Judgment at pp. 20-24.
Accordingly, the court finds that defendants, like Beaufort County, are immune from federal antitrust liability. Cf. Independent Taxi, Etc. v. Greater Houston, Etc., 760 F.2d 607, 613 (5th Cir.1985) (Goldberg, J.) (observing, in finding private defendants immune under the Noerr-Pennington doctrine, that "[i]t would be anomalous to hold on the one hand that government can contract with private entities to effectuate valid, albeit anticompetitive, policies, while holding on the other hand that private entities cannot petition government to participate in the public endeavor.").

IV. PENDENT CLAIMS
The plaintiffs also seek to hold the defendants liable for violations of a Beaufort County ordinance and South Carolina Unfair Trade Practices Act. Defendant WMSC's counterclaim against plaintiffs alleges that Margaret Savage, while employed by WMSC, learned of a business opportunity of WMSC and that Ms. Savage, taking advantage of confidential information of WMSC known to her and while still in WMSC's employ, seized that business opportunity for herself. This court finds that these claims should be dismissed for lack of an independent basis of subject matter jurisdiction. See United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 *1515 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) ("Certainly, if the federal claims are dismissed before trial, ... the state claims should be dismissed as well."); Federman v. Empire Fire and Marine Insurance Co., 597 F.2d 798, 809 (2d Cir.1979) ("Dismissal of the state claim is the recommended procedure ... in cases where the federal claim is disposed of prior to trial").

V. CONCLUSIONS
For the foregoing reasons, it is
ORDERED, that defendants' motions for summary judgment as to plaintiffs' second amended complaint, excluding the pendent claims, be, and the same are hereby, granted. It is
ORDERED FURTHER, that plaintiffs' motion for partial summary judgment as to various allegations of their second amended complaint, excluding defendants' counterclaim, be, and the same are hereby, denied. It is
ORDERED FURTHER, that the plaintiffs' pendent claims and the defendants' pendent counterclaim be, and the same are hereby, dismissed without prejudice.
AND IT IS SO ORDERED.
NOTES
[1]  Beaufort County and Beaufort County Council were dismissed from the suit after reaching a settlement with plaintiffs. WMSC is a competitor of the plaintiff and a wholly-owned subsidiary of WMI.
[2]  Although the County is no longer a party to this suit, this discussion is helpful in understanding this court's decision.
[3]  For example, the green box contract (B-13) provides specifications for equipment used by WMSC (¶¶ 2, 3); provides that the County Supervisor of Public Works is to specify container locations to WMSC and review and approve collection schedules (¶¶ 4, 6, 7); requires WMSC to comply with State and local sanitation laws (¶¶ 2, 9); and limits any increase in fees charged by WMSC to adjustments consistent with certain Price Indexes (¶ 20). Similarly, the franchise agreement (B-12) contains provisions relating to equipment specifications (¶ 2(d)); compliance with State and local sanitation laws (¶ 3); and limitations on pricing increases (¶ 9). The landfill contract (B-10) requires WMSC to comply with all applicable State, local and federal regulations on landfills (¶ 2(d)); allows the County to inspect the site and place monitoring personnel at the site (¶¶ 2(e), 13, 15); and allows the County to inspect daily records of volume received and fees collected (¶ 18).
[4]  Indeed, WMSC's manager of Edisto Services in 1981 testified that he met almost weekly with the County Supervisor of Public Works concerning the refuse collection contracts. In fact, he always checked with the County Supervisor before increasing prices to Edisto's customers within the areas covered by the contract (West deposition, pp. 26-29, A-5). Memorandum in Support of Defendants' Motion for Summary Judgment at p. 53.
[5]  Based upon Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) and United Mineworkers of America v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). "Joint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition. Such conduct is not illegal, either standing alone or as part of a broader scheme itself violative of the Sherman Act." See Defendants' Memorandum in Support of Their Motion to Dismiss Plaintiffs' First Amended Complaint, at pp. 19-20 (Mar. 1983).


22 Kan. App.2d 564 (1996)
919 P.2d 370
STATE OF KANSAS, Appellee,
v.
CHARLES D. TURNER, Appellant.
No. 73,722, No. 73,723.
Court of Appeals of Kansas.
Opinion filed June 28, 1996.
Benjamin C. Wood, special appellate defender, and Jessica Kunen, chief appellate defender, for appellant.
No appearance by appellee.
Before GERNON, P.J., MARQUARDT, J., and STEPHEN D. HILL, District Judge, assigned.
MARQUARDT, J.:
Charles D. Turner appeals the district court's use of a presentence investigation report from a prior conviction when imposing sentence and the trial court's order of restitution on dismissed charges.
On January 3, 1994, Turner pled no contest to credit card fraud. The district court issued a 10-month sentence and placed Turner *565 on probation for 24 months. While on probation, Turner was charged with four counts of forgery. Turner pled guilty to two counts in exchange for dismissal of the remaining two.
After Turner entered his plea, the State and Turner requested that the court use the presentence investigation report which had been submitted in Turner's prior credit card fraud case. The district court asked Turner if he was waiving his right to the production of a new presentence investigation report, and Turner responded affirmatively. A new presentence investigation report would not have changed anything in Turner's criminal history.
The district court revoked Turner's probation and ordered him to serve the 10-month sentence on his prior conviction. Turner received two concurrent 15-month sentences on the felony forgery convictions. The district court ordered these sentences to run consecutive to the 10-month sentence on the credit card fraud conviction.
At the State's request, the trial court ordered restitution on all four forgery charges despite Turner's argument that such an order would be unlawful. Turner appeals.
Turner argues that the district court erred in using the presentence investigation report from the previous conviction rather than ordering that a new report be prepared. This is an issue of statutory interpretation, which is a question of law, and this court's review is unlimited. Foulk v. Colonial Terrace, 20 Kan. App.2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
K.S.A. 21-4714(a) provides that "[t]he court shall order the preparation of the presentence investigation report by the court services officer as soon as possible after conviction of the defendant." "The criminal history worksheet will not substitute as a presentence report." K.S.A. 21-4714(d). A court can, however, "take judicial notice in a subsequent felony proceeding of an earlier presentence report criminal history worksheet prepared for a prior sentencing of the defendant for a felony committed on or after July 1, 1993." K.S.A. 21-4714(f).
Even if these statutes, taken together, required the production of a new presentence investigation report, Turner expressly waived this right at sentencing. On appeal, Turner does not challenge the *566 accuracy of the sentencing court's calculations of his criminal history or his crime severity level. In State v. Korbel, 231 Kan. 657, 663-64, 647 P.2d 1301 (1982), the court found that the trial court erred by failing to order a presentence investigation report, as required by statute, but held that the error was harmless, under the circumstances of the case, because the report would not have affected the sentence.
Here, Turner expressly waived his right to the production of a new report. On appeal, Turner fails to state that he did suffer or might have suffered any prejudice due to the sentencing court's use of the prior report. Turner does not contend that the report inaccurately represented his criminal history or that his crime severity level was miscalculated. Thus, Turner has failed to demonstrate that any prejudice resulted from the sentencing court's use of the prior report. Turner's argument is without merit.
Turner also argues that the district court erred in ordering restitution on the dismissed charges. This is also an issue of statutory interpretation, and this court's review is unlimited. Foulk, 20 Kan. App.2d 277, Syl. ¶ 1.
K.S.A. 21-4603(b) provides, in part:
"[W]henever any person has been found guilty of a crime, the court may adjudge any of the following:
"(1) Commit the defendant to the custody of the secretary of corrections or, if confinement is for a term less than one year, to jail for the term provided by law;
"(4) suspend the imposition of the sentence subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution....
"(5) assign the defendant to a community correctional services program subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution;
"(9) impose any appropriate combination of subsections (b)(1) through (b)(8)."
In State v. Ball, 255 Kan. 694, 698, 877 P.2d 955 (1994), Ball pled guilty to some of the charges against him; however, in the plea agreement, Ball agreed to pay restitution on all of the charges, including those that were dismissed. The Ball court held that the statutory language in K.S.A. 21-4603 did not prohibit the court, *567 under the circumstances, from imposing restitution for offenses that had been dismissed pursuant to a plea agreement. 255 Kan. at 699.
A number of jurisdictions have construed their criminal restitution statutes as limiting restitution orders to offenses that the accused has admitted committing; where the accused has been found guilty; or where the accused has agreed to pay restitution. See State v. Blanchard, 270 Mont. 11, 16-17, 889 P.2d 1180 (1995).
In State v. Wolff, 438 N.W.2d 199, 201-02 (S.D. 1989), it was held that the trial court violated the defendant's due process right to a knowing and voluntary plea by ordering restitution on dismissed charges without informing the defendant of the possibility of such an order when accepting a guilty plea on another charge. In People v. Chabeear, 163 Cal. App.3d 153, 155-56, 209 Cal. Rptr. 218 (1984), the court explained that a restitution order based solely on a dismissed criminal complaint fails to satisfy the due process requirements inherent to a proper adjudication of the lawful ownership of property.
In this case, the court had competent evidence on which to issue its order of restitution. Turner neither agreed to pay restitution on the dismissed charges nor admitted to the allegations in the dismissed charges; however, K.S.A. 21-4610(d)(1) does not limit the court's authority to order restitution on crimes to which a defendant did not plead.
Affirmed.


        IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
                          AT JACKSON
                           Assigned on Briefs May 3, 2016

                STATE OF TENNESSEE v. RONNIE INGRAM

                   Appeal from the Criminal Court for Shelby County
                        No. 10-01607    Chris Craft, Judge

                No. W2015-01527-CCA-R3-PC - Filed July 20, 2016

The defendant, Ronnie Ingram, appeals his sentencing by the Shelby County Criminal
Court to twelve years as a career offender for attempted criminal exposure to human
immunodeficiency virus (“HIV”), which was imposed upon remand after this court
reduced his original conviction of criminal exposure to HIV, a Class C felony, to
attempted criminal exposure to HIV, a Class D felony. The defendant argues that the
trial court erred by relying on facts from the original sentencing hearing in determining
that he was a career offender. Following our review, we affirm the sentencing imposed
by the trial court and remand for entry of a corrected judgment to reflect the defendant‟s
conviction offense, which was omitted.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court Affirmed
               and Remanded for Entry of a Corrected Judgment

ALAN E. GLENN, J., delivered the opinion of the court, in which CAMILLE R. MCMULLEN
and J. ROSS DYER, JJ., joined.

Terrell L. Tooten, Memphis, Tennessee, for the appellant, Ronnie Ingram.

Herbert H. Slatery III, Attorney General and Reporter; Clark B. Thornton, Senior
Counsel; Amy P. Weirich, District Attorney General; and Carla Taylor, Assistant District
Attorney General, for the appellee, State of Tennessee.
                                        OPINION

                                         FACTS

      This case arises out of the HIV-infected defendant‟s deliberately spitting in the
face of a Memphis police officer who captured him after the officer interrupted the
defendant‟s burglary of a home. A Shelby County jury convicted the defendant of
aggravated burglary, theft of property valued at more than $500 but less than $1,000,
criminal exposure to HIV, evading arrest, and resisting arrest. The trial court
subsequently sentenced him to a total effective sentence of thirty-two years plus eleven
months, twenty-nine days. See State v. Ronnie Ingram, No. W2011-02595-CCA-R3-CD,
2012 WL 5355694, at *1 (Tenn. Crim. App. Oct. 31, 2012).

        On direct appeal, this court reversed the criminal exposure to HIV conviction on
the basis that there was insufficient proof that the defendant‟s actions in spitting in the
officer‟s face presented “a significant risk of HIV transmission,” one of the essential
elements of the offense. Id. at *5. We found, however, that there was sufficient proof to
support the defendant‟s conviction for attempting to expose the officer to HIV. Id.
(“Based on the circumstances of (1) the officer‟s description of the defendant‟s
intentional spitting at the officer, (2) the defendant‟s statement, accompanying the
expectorating, that he was infected with HIV, and (3) the defendant‟s statement that he
hoped the police dog contracted „AIDS‟ or HIV from biting the defendant, we hold that
the evidence sufficiently established that the defendant, acting with intent to cause a
result of exposing the officer to HIV, an element of the greater offense charged, believed
the conduct would cause the result without further conduct on his part.”). Accordingly,
we remanded the case to the trial court for resentencing on that conviction.

       At the July 10, 2015 sentencing hearing, the trial court relied on facts presented at
the previous sentencing hearing to sentence the defendant as a career offender to twelve
years in the Department of Correction, to be served consecutively to the sentences for his
other convictions. Thereafter, the defendant filed a timely appeal to this court in which
he raises the issue of whether the trial court erred by sentencing him as a career offender.

                                       ANALYSIS

       The defendant argues that the trial court erred in sentencing him as a career
offender because the State failed to file a new notice of enhanced punishment or to
present any evidence at the new sentencing hearing to support a finding that he had the
requisite prior felonies to be classified as a career offender. The State responds by
arguing that the defendant was on notice from the first trial of the State‟s intent to seek

                                             2
enhanced punishment and that the trial court was entitled to rely in sentencing on its
previous findings of fact. We agree with the State.

        A career offender is a defendant who has received “[a]t least six (6) prior felony
convictions of any classification if the defendant‟s conviction offense is a Class D or E
felony.” Tenn. Code Ann. § 40-35-108(a)(3). A defendant who has been found by the
trial court “beyond a reasonable doubt to be a career offender shall receive the maximum
sentence within the applicable Range III.” Id. at § 40-35-108(c).

       At the sentencing hearing, the trial court referred to the presentence report on
which it had based its original sentencing determinations in the case. When defense
counsel argued that the defendant should be sentenced as a Range I offender if “all we
have before us is this presentence report, and nothing further,” the trial court replied that
it was adopting the same proof that was offered in the first sentencing hearing with
respect to the defendant‟s prior convictions, which had already been proven.

        We find no error in the trial court‟s reliance on facts presented at the prior
sentencing hearing to classify the defendant as a career offender. As the State points out
in its brief, it is well-established that a court may take judicial notice of factual findings
made in prior proceedings in the same case. See Pruitt v. State, 460 S.W.2d 385, 395
(Tenn. Crim. App. 1970) (“The rule has long since been firmly established in this State
that a Court may take judicial knowledge of facts which it has learned in an earlier
hearing of the same case and of what it has done at a previous hearing of that case.”); see
also State v. Ernest Gentry Burton, No. M2008-00431-CCA-R3-CD, 2009 WL 2382284,
at *15 (Tenn. Crim. App. Aug. 3, 2009), perm. app. denied (Tenn. Dec. 14, 2009) (noting
that the “trial court may take judicial notice of any fact that is capable of accurate and
ready determination by resort to sources whose accuracy cannot reasonably be
questioned[,]” including facts from “an earlier proceeding in the same case”) (citing
Tenn. R. Evid. 201; Pruitt, 460 S.W.2d at 395). We also agree with the State that it was
not required to duplicate its notice of enhanced punishment after remand from this court
for resentencing for the lesser-included offense of attempted criminal exposure to HIV
because the defendant was on notice from the first sentencing proceeding of the State‟s
intent in that regard. See State v. Livingston, 197 S.W.3d 710, 714-15 (Tenn. 2006).
We, therefore, affirm the sentencing determinations of the trial court.

                                      CONCLUSION

        Based on our review, we conclude that the trial court did not err in considering
facts from the original sentencing hearing in finding that the defendant had the requisite
felonies to be sentenced on remand as a career offender. Accordingly, we affirm the
sentencing imposed by the trial court and remand for entry of a corrected judgment to
                                              3
reflect the defendant‟s conviction offense of attempted criminal exposure to HIV, which
was omitted on the original judgment.

                                               _________________________________
                                               ALAN E. GLENN, JUDGE

                                           4


Case: 11-1321      Document: 19      Page: 1     Filed: 01/16/2014

                NOTE: This order is nonprecedential.

   United States Court of Appeals
       for the Federal Circuit
                    ______________________

           DUNCAN KITCHEN GRIPS, INC.,
                Plaintiff-Appellant,

                                v.

      BOSTON WAREHOUSE TRADING CORP.,
               Defendant-Appellee.
             ______________________

                          2011-1321
                    ______________________

    Appeal from the United States District Court for the
 Central District of California in No. 09-CV-1328, Judge
 Cormac J. Carney.
                  ______________________

                        ON MOTION
                    ______________________

                           ORDER
     Having received no objection to this court’s December
 30, 2013, order,
    IT IS ORDERED THAT:
    (1) The appeal is dismissed.
    (2) Each side shall bear its own costs.
Case: 11-1321   Document: 19   Page: 2   Filed: 01/16/2014

 2                 DUNCAN KITCHEN   v. BOSTON WAREHOUSE

                                 FOR THE COURT

                                 /s/ Daniel E. O’Toole
                                 Daniel E. O’Toole
                                 Clerk of Court

 s21

 ISSUED AS A MANDATE: January 16, 2014


118 So.2d 922 (1960)
STANDARD ACCIDENT INSURANCE COMPANY
v.
Wesley W. WHITSET, as Administrator.
6 Div. 470.
Supreme Court of Alabama.
March 17, 1960.
*923 S. R. Starnes, Jos. G. Gamble, Jr., and Spain, Gillon & Young, Birmingham, for appellant.
Jas. O. Haley and Lange, Simpson, Robinson & Somerville, Birmingham, for appellee.
SIMPSON, Justice.
The plaintiff, appellant, Standard Accident Insurance Company, a corporation, instituted a suit against Wesley W. Whitset, as administrator of the estate of Greta Whitset Jones, deceased, in the Circuit Court of Jefferson County, Alabama. Appellant's complaint alleged that appellant insured James Newt Glaze or his estate against damage to a certain automobile by reason of collision; that on August 25, 1957, said automobile was damaged as a proximate consequence of the negligence of appellee's intestate; that James Newt Glaze died as a result of injuries sustained in said accident; that appellant had paid the amount due under said policy to the administrator of the estate of James Newt Glaze and thereby became subrogated to the rights and claims of the estate of the said James Newt Glaze against the defendant to the extent of its loss. It thus appears that plaintiff's action is grounded on the alleged tort of appellee's intestate.
Defendant interposed demurrers to the complaint and the court entered an order sustaining them. The plaintiff thereupon took a non-suit on account of this adverse ruling and from the judgment of non-suit the appeal is taken.
The survival of actions and causes of action, as here pertinent, are controlled by statute in Alabama. Tit. 7, § 150, Code of Alabama of 1940; Tit. 7, § 123(1), Code of Alabama of 1940; Wynn v. Tallapoosa County Bank, 168 Ala. 469, 53 So. 228; Ex parte Holsonback, 236 Ala. 265, 182 So. 28.
Title 7, § 150, as originally adopted provided for the survival of actions. There is a distinction between actions and causes of action. This court pointed out this distinction in the Wynn case, supra, and held that the foregoing statute did not at that time provide for the survival of causes of action. Subsequently, the legislature amended the same to read as follows:
"All actions and causes of action on contract, express or implied, and all personal actions, except for injuries to the reputation, survive in favor of and against personal representatives; and all personal causes of action survive against the personal representative of a deceased tort feasor." Gen.Acts, 1951, p. 1290.
The foregoing statute does not provide that personal causes of action survive in favor of the personal representative of a deceased person, but does provide that such causes of action survive against the personal representative of a deceased tortfeasor.
In addition to the foregoing, the legislature in 1956 passed Tit. 7, § 123(1), which reads as follows:
"§ 123(1). Action for injuries to property resulting from tort which caused owner's death.The personal representative of a deceased person may maintain an action in a court of competent jurisdiction within the State of Alabama, and not elsewhere, and recover such damages as the jury may assess, for injuries or damages to the property of the decedent resulting from the same wrongful act, omission or negligence which caused the death of the decedent, provided the decedent could have maintained such action if the wrongful act, omission or negligence causing the property damage had not also caused his death. Such action may be maintained, though *924 there has not been prosecution or conviction, or acquittal of the defendant for the wrongful act, omission or negligence; and shall not abate by the death of the defendant, but may be revived against his personal representative. The damages recovered are not subject to the payment of the debts or liabilities of the decedent, but must be distributed according to the statute of distributions. Such action must be brought within one year from and after the death of the decedent. (1956, 1st Ex.Sess., No. 113, appvd. Feb. 14, 1956.)"
The right to bring an action for property damage after the death of the injured party has thus been extended to the personal representative of the decedent by virtue of the foregoing section. Prior to the passage of the same there was no such right, since the right to bring an action after the death of the injured party before that time was controlled by Tit. 7, § 150, Code of Alabama of 1940, as amended, which does not provide for the survival of personal causes of action in favor of the personal representative of the decedent.
Said § 123(1), supra, grants to the personal representative of a deceased person the right to "maintain an action * * * for injuries or damages to the property of the decedent resulting from the same wrongful act, omission or negligence which caused the death of the decedent, provided the decedent could have maintained such action * * *", and further provides that such damages as recovered in such an action "must be distributed according to the statute of distributions". This language is identical to that contained in Tit. 7, § 123 (the wrongful death statute) and we have previously held that the estate of such decedent is not interested in the result of a suit brought under that section. Stephens v. Williams, 226 Ala. 534, 147 So. 608.
The complaint in the case at hand averred that the plaintiff (appellant) had become subrogated to the rights of the estate of the said Glaze. Tit. 7, § 123(1), supra, does not create a right in the estate of the decedent but creates a right in the personal representative of the estate of the decedent and provides for the distribution of damages recovered thereunder according to the statute of distributions. Such being the case, the complaint did not state a cause of action in this appellant and the demurrers were properly sustained.
Appellant points out that this result will promote manifest injustice where the equities of subrogation are involved. It is, however, the province of the legislature and not the court, to correct such injustice by providing a remedy in favor of the subrogee in such instances.
Affirmed.
STAKELY, GOODWYN, and MERRILL, JJ., concur.


                     United States Court of Appeals
                             FOR THE EIGHTH CIRCUIT
                                ________________

                                   No. 07-2334
                                ________________

National Labor Relations Board,           *
                                          *
             Petitioner,                  *
                                          *      Petition for Enforcement
      v.                                  *      of an Order of the
                                          *      National Labor Relations Board.
Bolivar-Tees, Inc; Screen                 *
Creations, Ltd.; Screen Creations         *
de Mexico; Screen Creations de            *
Celaya; Single Employers; Allan           *
Heller,                                   *
                                          *
             Respondents.                 *

                                ________________

                            Submitted: February 15, 2008
                               Filed: June 4, 2008
                                ________________

Before MELLOY, GRUENDER and SHEPHERD, Circuit Judges.
                      ________________

GRUENDER, Circuit Judge.

      The National Labor Relations Board (“Board”) held that Bolivar-Tees, Inc.
(“Bolivar”) committed unfair labor practices in violation of the National Labor
Relations Act (“NLRA”) and ordered the corporation to provide backpay to five
former employees. However, when the United States Court of Appeals for the District
of Columbia Circuit enforced the order, Bolivar was dissolved and had disposed of all
of its assets. In a subsequent compliance proceeding, an administrative law judge
(“ALJ”) recommended that Screen Creations, Ltd. (“Screen Creations”), Screen
Creations de Mexico, Screen Creations de Celaya and Allan Heller be held jointly and
severally liable with Bolivar because the corporations constituted a single employer
and because the corporate veil should be pierced to allow collection from Heller
personally. The Board filed a petition for the enforcement of its Supplemental
Decision and Order (“Order”), which adopted the recommendations of the ALJ. We
grant the petition and enforce the Order.

I.    BACKGROUND

       Screen Creations, incorporated in Missouri by Heller’s father, made custom,
screen-printed tee-shirts. Upon receiving a tee-shirt order from a customer, Screen
Creations would purchase the fabric and contract with another entity to cut and sew
the fabric into a tee-shirt. The contracted entity would then provide the finished
garment to Screen Creations, which would screen print the tee-shirt and ship the final
product to the customer. Heller became sixty percent owner of Screen Creations while
his father maintained a forty percent interest in the corporation. Heller also exercised
overall managerial control of the corporation’s operations and was its only officer and
director from 1999 to 2003, except for 2002, when the company’s annual report also
listed Heller’s father as one of the directors. Heller drew an average annual salary
from Screen Creations of approximately $192,000 from 1990 to 1997, and
approximately $120,000 from 2000 to 2003.1

      In an effort to consolidate the production process, Heller incorporated Bolivar
in March 1990 to cut and sew fabric into tee-shirts exclusively for Screen Creations.

      1
       From 1990 to 1997, Screen Creations paid Heller a salary of $226,250,
$156,800, $245,850, $219,000, $134,000, $107,000, $224,750 and $224,750,
respectively. From 2000 to 2003, he received $187,000, $99,750, $90,240 and
$103,600, respectively. Heller’s salary for 1998 and 1999 was not part of the record.

                                          -2-
Heller was Bolivar’s sole owner, officer and director. At Bolivar’s inception, Heller
borrowed $170,000 from Screen Creations in return for a promissory note dated
March 26, 1990. He used the money to purchase cutting and sewing equipment from
one of Screen Creations’ subcontractors. Heller then had Bolivar purchase this
equipment from him with its promissory note for $170,000. Both promissory notes
provided for ten percent interest, payments starting on December 31, 1990, and
payment of the remaining principal balance by 1995. Throughout its existence,
Bolivar purchased additional equipment, using $501,218 of its own funds.

       Bolivar consistently suffered financial difficulties. The amount Bolivar charged
Screen Creations for the tee-shirts it manufactured did not cover its basic operating
costs. As a result, Bolivar made no payments to Heller on the promissory note, and
Heller similarly made no payments to Screen Creations. With interest accruing on the
promissory note, Bolivar’s books indicated that it owed Heller $357,438 by 2000.
Screen Creations, which was generally profitable, also regularly advanced operating
funds to Bolivar. By 2001, Bolivar’s books also reflected that it owed $202,741 to
Screen Creations.

      Even beyond the advances, Screen Creations and Bolivar were closely
connected financially. In 1997, Screen Creations revised its profit-sharing plan to
include Bolivar’s employees. From 1999 to 2001, the two corporations were insured
under an insurance policy issued to Screen Creations. The policy covered Bolivar’s
equipment in the amount of $550,000. Finally, Screen Creations, and not Bolivar,
provided Heller with a salary and insurance benefits.

      In 1998, charges were brought against Bolivar for unfair labor practices. After
a hearing, an ALJ found that Bolivar unlawfully suspended and discharged five
employees in violation of section 8(a)(1) and (3) of the NLRA, 29 U.S.C. § 158(a)(1),
(3). The Board issued an order requiring Bolivar to reinstate the former employees
and to make those employees “whole for any loss of earnings and other benefits

                                         -3-
suffered as a result of the discrimination.” Bolivar Tee’s Mfg. Co., 334 N.L.R.B.
1145, 1159 (2001) (affirming the ALJ’s September 24, 1998 decision). The United
States Court of Appeals for the District of Columbia Circuit granted the Board’s
petition for the enforcement of that order. Bolivar Tee’s Mfg. Co. v. NLRB, 61 Fed.
Appx. 711 (D.C. Cir. 2003) (unpublished per curiam). The Board has since calculated
the amount of lost earnings and benefits due to the five discriminatees, concluding that
Bolivar owes $96,399.15 in backpay. Bolivar-Tees, Inc., 349 N.L.R.B. No. 70, at *4
(2007).

       According to Heller, the North American Free Trade Agreement (“NAFTA”)
made textile manufacturing unprofitable in the United States but economically
advantageous in Mexico. In 1999, Heller began moving Bolivar’s equipment to
Mexico. In February 2000, Heller incorporated Screen Creations de Mexico, a
Mexican corporation, and was a fifty percent owner, the president and a member of
its board of directors. By October 20, 2000, Heller had moved all of Bolivar’s
equipment to Screen Creations de Mexico. Screen Creations de Mexico never paid
Bolivar for the equipment or for its use of the equipment.

       Heller claims that he transferred the legal title of Bolivar’s equipment to Screen
Creations and that Screen Creations paid for the equipment by reducing the debt
Bolivar owed it on January 1, 2001. Heller did not have Bolivar’s equipment
appraised at the time of the transfer and did not provide any documentation regarding
the change in legal title. Although Bolivar purchased the equipment for $671,218 and
it was insured for $550,000, Bolivar’s 2001 tax return recorded the transfer as a sale
of the equipment in the amount of $225,000, a figure that Heller claims he and his
accountant arrived upon after “we went through various scenarios and talked about
market conditions, book value and other issues.” Screen Creations never actually paid
Bolivar. Instead, Heller asserts that the transfer was a “paper transaction,” where
Bolivar’s debt to Screen Creations was reduced by $225,000. However, according to
Bolivar’s 2001 tax return, Bolivar’s debt to Screen Creations was reduced by

                                          -4-
$122,573, not the full $225,000. With respect to the $102,427 difference, Heller
asserts that Screen Creations must have advanced an additional $102,427 during the
2001 tax year. Heller, however, did not provide any documentary evidence supporting
this claim.

       Bolivar’s equipment was its only asset. With no assets left, Bolivar ceased
operations in July 2001. In October 2004, the State of Missouri officially dissolved
Bolivar for failure to file a 2004 annual registration report. In November 2004, Screen
Creations de Mexico also ceased operations. Heller then sent the Bolivar equipment
to a Mexican corporation named Confecciones Guanajuanto (“Confecciones”). Heller
had no ownership interest in Confecciones, and Confecciones paid no compensation
for the use of the equipment. However, Heller hoped to receive future compensation
from Confecciones through commissions on product sales.

       Screen Creations’ operations also moved to Mexico. In November 2001, Heller
incorporated Screen Creations de Celaya to conduct the custom screen printing.
Heller was a sixty-five percent owner, the president and a member of its board of
directors. Heller transferred eighty to ninety percent of Screen Creations’ equipment
to Screen Creations de Celaya, although the title to the equipment remained with
Screen Creations. Screen Creations de Celaya did not pay any compensation for the
use of the equipment. Heller claims that Screen Creations de Celaya forwarded a
portion of its profits to Screen Creations, although no agreement existed for such
payments and no evidence was presented that Screen Creations de Celaya actually
made such payments.

      By April 2003, Screen Creations ceased all production work and became a
service business that engaged in sales and technical assistance to Screen Creations de
Mexico and Screen Creations de Celaya, although it has not been compensated for
these services. In October 2004, the State of Missouri administratively dissolved
Screen Creations for failure to file a 2004 annual registration report. Nonetheless,

                                         -5-
Screen Creations continues to operate, and Heller is the corporation’s only remaining
employee. Heller claims that he has loaned more than $300,000 to Screen Creations
between 2001 and 2004.

       Before Heller transferred Bolivar’s assets, Bolivar did not attempt to satisfy the
unfair labor practice award against it. In an attempt to collect on the backpay due, the
Board issued a compliance specification against Bolivar, Screen Creations, Screen
Creations de Mexico, Screen Creations de Celaya and Heller. See Bolivar-Tees, Inc.,
349 N.L.R.B. No. 70, at *5. The compliance specification alleged that the corporations
and Heller should be held jointly and severally liable for the backpay award against
Bolivar because the corporations constituted a single employer2 and because the
corporate veil should be pierced to allow collection from Heller personally. An ALJ
conducted a hearing regarding the allegations of the compliance specification and
recommended that all five respondents be held jointly and severally liable for the
award against Bolivar. On April 12, 2007, the Board issued the Order adopting the
ALJ’s recommendation.

       Pursuant to 29 U.S.C. § 160(e), the Board filed a petition in this court for the
enforcement of its Order. Heller challenged the Board’s decision to pierce the
corporate veil, but the corporate respondents did not contest the Board’s decision that
the four corporations constitute a single employer. “The Board is entitled to summary
enforcement of the uncontested portions of its order.” Flying Food Group, Inc. v.
NLRB, 471 F.3d 178, 181 (D.C. Cir. 2006); accord NLRB v. MDI Commercial Servs.,
175 F.3d 621, 624 (8th Cir. 1999). We therefore summarily enforce the Order with
respect to the single employer holding. Because the Board’s uncontested findings
allow us to treat Screen Creations, Bolivar, Screen Creations de Mexico, and Screen

      2
          “The single employer doctrine is a Board creation that treats two or more
related enterprises as a single employer for purposes of holding the enterprises jointly
. . . liab[le] for any unfair labor practices.” Iowa Express Distrib., Inc. v. NLRB, 739
F.2d 1305, 1310 (8th Cir. 1984).

                                          -6-
Creations de Celaya as a single employer, we consider the evidence involving all of
the corporations in deciding whether the Board’s order piercing the corporate veil to
allow collection from Heller was appropriate. See MDI Commercial Servs., 175 F.3d
at 624; Radisson Plaza Minneapolis v. NLRB, 987 F.2d 1376, 1381-82 (8th Cir. 1993).

II.   DISCUSSION

       “We will enforce the Board’s order if the Board has correctly applied the law
and its factual findings are supported by substantial evidence on the record as a
whole,” Wal-Mart Stores, Inc. v. NLRB, 400 F.3d 1093, 1097 (8th Cir. 2005), “even
if we might have reached a different decision on de novo review,” NLRB v. Rockline
Indus., Inc., 412 F.3d 962, 966 (8th Cir. 2005). “Substantial evidence is more than a
mere scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” NLRB v. La-Z-Boy Midwest, 390 F.3d 1054, 1058
(8th Cir. 2004). However, “[i]n considering whether substantial evidence supports the
Board’s decision, we must take into account whatever in the record fairly detracts
from its weight.” MDI Commercial Servs., 175 F.3d at 630 (internal quotations
omitted).

       “The corporate structure is an artificial construct of the law, a substantial
purpose of which is to create an incentive for investment by limiting [a shareholder’s]
exposure to personal liability” for the corporation’s debts and obligations. NLRB v.
Greater Kan. City Roofing, 2 F.3d 1047, 1051 (10th Cir. 1993). “In extreme
circumstances, . . . the corporate form will be disregarded and the personal assets of
a controlling shareholder or shareholders may be attached in order to satisfy the debts
and liabilities of the corporation.” Id. However, courts should “only reluctantly and
cautiously” pierce the corporate veil, and the “veil may not be pierced absent a
showing of improper conduct.” Id. “[T]he party who wishes to pierce the corporate
veil bears the burden of proving that there are substantial reasons for doing so.”

                                         -7-
Contractors, Laborers, Teamsters & Eng’rs Health & Welfare Plan v. Hroch, 757
F.2d 184, 190 (8th Cir. 1985).

       Whether a shareholder can be personally liable for a corporation’s financial
obligations resulting from its unfair labor practice under the NLRA “is a question of
federal law [because] it arises in the context of a federal labor dispute.” NLRB v.
Fullerton Transfer & Storage Ltd., 910 F.2d 331, 335 (6th Cir. 1990); accord White
Oak Coal Co., 318 N.L.R.B. 732, 734 (1995), enforced, 81 F.3d 150 (4th Cir. 1996).
Although Congress did not provide specifically for shareholder liability for violations
of the NLRA, federal courts have pierced the corporate veil to hold shareholders liable
for violations of federal statutes, including the NLRA. See, e.g., United States v.
Bestfoods, 524 U.S. 51, 61-64 (1998); Anderson v. Abbott, 321 U.S. 349, 358 (1944);
Minn. Laborers Health & Welfare Fund v. Scanlan, 360 F.3d 925, 928 (8th Cir.
2004); Hroch, 757 F.2d at 190-91; Bufco Corp. v. NLRB, 147 F.3d 964, 969 (D.C. Cir.
1998). We have adopted the following two-prong test as the “federal common law
standard,”3 Scanlan, 360 F.3d at 928, for piercing the corporate veil: “(i) was there
such unity of interest and lack of respect given to the separate identity of the
corporation by its shareholders that the personalities and assets of the corporation and
the individual are indistinct, and (ii) would adherence to the corporate fiction sanction
a fraud, promote injustice, or lead to an evasion of legal obligations.” Id. (quoting
Greater Kan. City Roofing, 2 F.3d at 1052).4

      3
        The Supreme Court has noted that there is “significant disagreement among
courts and commentators” regarding whether federal courts should “apply a federal
common law” or “borrow state law” when piercing the corporate veil to attach
shareholder liability for a corporation’s violation of a federal law. Bestfoods, 524 U.S.
at 63 n.9.
      4
       Although the term “alter ego” is commonly employed in the context with
piercing of the corporate veil, a distinct “alter ego doctrine” has developed under the
NLRA, which “involves a more lenient standard for disregarding the corporate form
than that employed in corporate law.” Greater Kan. City Laborers Pension Fund v.

                                          -8-
      When assessing the first prong to determine whether the shareholders and the
corporation have failed to maintain their separate identities, “we consider . . . the
degree to which the corporate legal formalities have been maintained, and . . . the
degree to which individual and corporate assets and affairs have been commingled.”
Greater Kan. City Roofing, 2 F.3d at 1052. A non-exhaustive list of factors we will
consider to make this determination include:

      (1) whether the corporation is operated as a separate entity; (2) the
      commingling of funds and other assets; (3) the failure to maintain
      adequate corporate records; (4) the nature of the corporation’s ownership
      and control; (5) the availability and use of corporate assets, the absence
      of same, or under capitalization; (6) the use of the corporate form as a
      mere shell, instrumentality or conduit of an individual or another
      corporation; (7) disregard of corporate legal formalities and the failure
      to maintain an arm’s-length relationship among related entities; (8)
      diversion of the corporate funds or assets to noncorporate purposes; and
      . . . (9) transfer or disposal of corporate assets without fair consideration.

White Oak Coal Co., 318 N.L.R.B. at 735; accord Greater Kan. City Roofing, 2 F.3d
at 1052 n.6. No one factor is determinative, and not all of the these factors must be
present.

      When assessing the second prong to determine whether adherence to the
corporate fiction would sanction a fraud, promote injustice or lead to an evasion of

Super. Gen. Contractors, Inc., 104 F.3d 1050, 1055 (8th Cir. 1997) (internal
quotations and citations omitted). The NLRB’s “alter ego doctrine focuses on whether
one business entity should be held to the labor obligations of another business entity
that has discontinued operations.” Iowa Express, 739 F.2d at 1310. However,
piercing of the corporate veil to attach liability to a shareholder is a doctrine of
corporate law and is distinct from the alter ego doctrine developed under the NLRA.
See Bestfoods, 524 U.S. at 61-63; Scanlan, 360 F.3d at 927-28.

                                           -9-
legal obligations, we consider causation and culpability. See Greater Kan. City
Roofing, 2 F.3d at 1052-55. A corporation’s inability to pay its debt alone is not
sufficient to support a finding of injustice. Id. at 1053; see Hroch, 757 F.2d at 191.
“It is only when the shareholders disregard the separateness of the corporate identity
and when that act of disregard causes the injustice or inequity or constitutes the fraud
that the corporate veil may be pierced.” Greater Kan. City Roofing, 2 F.3d at 1053
(emphasis in original). Additionally, the shareholders who will be held personally
liable for the corporation’s debt must share in some level of culpability for the
injustice. Id.

       With respect to the first prong, substantial evidence supports the Board’s
finding that Heller and the corporations failed to maintain their separate identities.
First, Heller controlled and owned all four corporations, and he directed the decision-
making of each corporation. Second, Heller did not operate Bolivar and Screen
Creations as separate entities. Screen Creations’ insurance plan covered Bolivar’s
assets and its profit-sharing plan included Bolivar’s employees. More importantly,
Heller kept Screen Creations profitable in part by rendering Bolivar unprofitable.
Screen Creations was Bolivar’s sole customer, but Bolivar neither charged enough to
cover its basic operating costs nor attempted to expand its customer base. Heller also
received his salary from Screen Creations and not Bolivar. As a result, Heller’s salary
was tied to Screen Creations’ profitability and not Bolivar’s profitability.

      Third, Heller and the corporations readily commingled funds, failed to maintain
adequate corporate records, disregarded corporate legal formalities, and failed to
maintain an arm’s-length relationship. The funds used to purchase Bolivar’s initial
equipment came from Screen Creations through Heller. Although Screen Creations,
Bolivar and Heller exchanged promissory notes, neither Bolivar nor Heller ever made
any payments on the notes, and neither Heller nor Screen Creations ever attempted to
enforce them in any way. Heller effectively prevented Bolivar from making payments
on the promissory note because he did not allow Bolivar to charge Screen Creations

                                         -10-
enough to cover its operating costs. Moreover, Screen Creations advanced operating
funds to Bolivar without any real accounting or any formal agreement for return
payments. In fact, outside the yearly tax returns, the corporations failed to document
and account for the transactions between them adequately. As a result, the two
corporations’ tax returns reflected different amounts for Bolivar’s debt to Screen
Creations.5 According to Screen Creations’ 2001 tax return, Bolivar owed Screen
Creations $306,071 at the beginning of the tax year and $103,330 at the end of the tax
year. According to Bolivar’s 2001 tax return, Bolivar owed Screen Creations
$202,741 at the beginning of the tax year and $80,168 at the end of the tax year.
Thus, Heller readily commingled funds between the two corporations and failed to
follow normal legal formalities.

       Finally, Heller disposed of Bolivar’s corporate assets without fair consideration.
Screen Creations de Mexico and Confecciones have never paid compensation for the
use of Bolivar’s equipment, and no appraisal of the equipment occurred before the
transfer of Bolivar’s assets to Screen Creations. Instead, Heller and his accountant
arrived at the sale price of $225,000, for equipment insured for $550,000 and
purchased for $671,218, after a discussion of “various scenarios.” Additionally, no
corporate records document the sale of Bolivar’s assets to Screen Creations. Even if
the $225,000 sale price did reflect the fair market value for the equipment, $102,427
of the sale proceeds was never realized by Bolivar, according to its 2001 tax return.
Although Heller asserts that Screen Creations must have advanced an additional
$102,427 during the 2001 tax year, he did not provide any documentation of such
advances. Screen Creations’ 2001 tax return also does not reflect such an advance.6

      5
        Heller testified that the amount “due from affiliated companies” on Screen
Creations’ tax returns reflected the amount Bolivar owed Screen Creations. Heller
also testified that the “due to affiliate” on Bolivar’s tax returns reflected the amount
Bolivar owed Screen Creations.
      6
       According to Screen Creations’ 2001 tax return, Bolivar’s debt at the
beginning of the tax year was $306,071. Had Screen Creations reduced this debt by

                                          -11-
Thus, neither Screen Creations’ nor Bolivar’s tax returns substantiate Heller’s
assertions. The failure to operate as a separate entity, to maintain adequate corporate
records, to maintain an arm’s-length relationship, to maintain corporate legal
formalities, to avoid the commingling of funds, and to avoid the disposal of corporate
assets without fair consideration provide substantial evidence to support a finding that
corporate legal formalities were not maintained and that the assets and affairs of
Heller and his corporations were indistinct. Therefore, substantial evidence supports
the Board’s finding that Heller and the corporations have failed to maintain their
separate identities.7

the full sale price of $225,000, then Bolivar’s debt would have been $81,071. Had
Screen Creations then advanced an additional $102,427 as Heller asserted, Bolivar’s
debt would have increased to $183,498. However, Screen Creations’ 2001 tax return
shows that Bolivar’s debt was $103,330 at the end of the tax year, reflecting a possible
advance of no more than $22,259. Screen Creations’ tax returns do not indicate an
advance to Bolivar of $102,427.
      7
         The Board found that Heller grossly undercapitalized Bolivar. Because no
evidence was provided of the level of capitalization at the time of incorporation, we
do not look at the adequacy of capitalization in this case. The adequacy of
capitalization must be measured at the time of incorporation because it reveals
whether the corporation was created to avoid liability. See 1 William Meade Fletcher
et. al., Fletcher Cyclopedia of the Law of Private Corporations § 41.33, at 652 (perm.
ed., rev. vol. 1999); Harry G. Henn & John R. Alexander, Laws of Corporations and
Other Business Enterprises § 146, at 349 & n.21 (3d ed. 1983); see also J-R Grain Co.
v. FAC, Inc., 627 F.2d 129, 135 (8th Cir. 1980) (finding that inadequate capitalization
is to be determined at the time of incorporation under the common law and applying
it to Nebraska law). Inadequate capitalization after incorporation is generally relevant
if the capital was removed as part of a fraudulent conveyance scheme. In such a
scheme, the inappropriate transfer of assets and not the level of capitalization would
be the prevailing factor in determining whether to pierce the corporate veil. See
Robert Charles Clark, The Duties of the Corporate Debtor to its Creditors, 90 Harv.
L. Rev. 505, 544 (1977); see also Stephen B. Presser, Piercing the Corporate Veil §§
1:8-1:9 (2004) (providing an in-depth comparison of the inadequate capitalization
theory and the fraudulent conveyance theory to piercing the corporate veil).

                                         -12-
       With respect to the second prong, substantial evidence supports the Board’s
finding that adherence to the corporate fiction would sanction a fraud or lead to an
evasion of a legal obligation. In addition to providing substantial evidence of the first
prong, Heller’s transfer of Bolivar’s assets provides substantial evidence to support
a finding under the second prong that Heller fraudulently removed Bolivar’s assets to
avoid Bolivar’s legal obligations to the five discriminatees. Although Screen
Creations insured Bolivar’s equipment for $550,000, Heller, without a formal
assessment of the value of the equipment originally purchased for $671,218,
supposedly sold the same equipment for $225,000. Even if the $225,000 sale price
reflected the fair market value of Bolivar’s equipment, Bolivar’s 2001 tax return also
reveals that Bolivar never received approximately forty-five percent of the proceeds.
This missing $102,427 could have been available to satisfy the entire backpay award
against Bolivar or, according to Bolivar’s accounting, could have paid all of Bolivar’s
debt to Screen Creations and approximately a quarter of the backpay award.
Additionally, with the equipment in Mexico, the possibility of attachment of Bolivar’s
assets became significantly more difficult, if not impossible. The arrangement also
benefitted Heller because his corporation, Screen Creations de Mexico, received the
equipment for free at the expense of Bolivar and the discriminatees.

       In addition to removing all of Bolivar’s assets, Heller prevented Bolivar from
becoming profitable. Bolivar did not charge enough to cover its operating costs. As
a result, Screen Creations was able to have greater profitability, and Heller could draw
his salary from Screen Creations. Thus, it was at least reasonable for the Board to
conclude that Heller’s transfer of Bolivar’s assets and the allocation of all profits to
Screen Creations purposely caused Bolivar to lack the resources to satisfy the award.
Therefore, substantial evidence exists to support a finding that adherence to the
corporate fiction would sanction a fraud and lead to the evasion of a legal obligation.

                                          -13-
        Heller argues that substantial evidence does not support a finding that he had
the requisite culpability to justify piercing the corporate veil.8 Heller first claims that
his case is similar to Greater Kansas City Roofing. In Greater Kansas City Roofing,
the Tenth Circuit held that Tina Clarke did not have sufficient culpability to justify
piercing the corporate veil. 2 F.3d at 1055. Clarke’s brother and sister-in-law owned
Greater Kansas City Roofing (“GKC”), a corporation that was ordered to make
payments to remedy its unfair labor practices. Id. at 1049. When the company began
to struggle financially, Clarke provided personal loans to GKC. Id. at 1050. Upon
realizing that GKC would not survive, Clarke incorporated New Greater Kansas City
Roofing and obtained the assets of GKC through a transfer in lieu of foreclosure. Id.
The Tenth Circuit held that although Clarke had not maintained many corporate
formalities, the Board could not pierce the corporate veil because she was unaware of
the judgment against GKC for unfair labor practices when she obtained GKC’s assets.
Id. at 1055. Unlike Clarke, however, Heller knew of the findings against Bolivar for
unfair labor practices and of the ALJ’s decision that Bolivar provide backpay to the
five discriminatees. The ALJ issued the decision on September 24, 1998. Although
the ALJ did not specify the exact amount that Bolivar owed the discriminatees, Heller
easily could have calculated the amount owed based on the formula that the ALJ
provided in the order. While the ALJ’s decision was pending before the Board, Heller

      8
       There has been some debate as to the level of culpability required to pierce the
corporate veil. Compare Seymour v. Hull & Moreland Eng’g, 605 F.2d 1105, 1111
(9th Cir. 1979) (requiring a showing of fraudulent intent), Cent. States, Se. & Sw.
Areas Pension Fund v. Cent. Transp., Inc., 85 F.3d 1282, 1288 (7th Cir. 1996) (same),
and Bhd. of Locomotive Eng’rs v. Springfield Terminal Ry. Co., 210 F.3d 18, 38 (1st
Cir. 2000) (Stahl, J., dissenting) (same), with Trs. of the Nat.’l Elevator Indus.
Pension, Health Benefit & Educ. Funds v. Lutyk, 332 F.3d 188, 194 (3d Cir. 2003)
(holding that fraudulent intent not required for piercing the corporate veil), and
Thomas v. Peacock, 39 F.3d 493, 504 n.16 (4th Cir. 1994), rev’d on other grounds,
516 U.S. 349 (1996) (stating that proof of fraud is not a necessary element to
disregard the corporate entity). We need not decide, at this time, the exact level of
culpability required because we conclude that substantial evidence supports a finding
that Heller had the highest level of culpability, the intent to defraud.

                                           -14-
began moving Bolivar’s assets to Mexico in 1999 and finished transferring assets to
Screen Creations by January 1, 2001, the date of sale as recorded in Bolivar’s tax
return. Bolivar also ceased operations a month before the Board issued its decision
adopting the ALJ’s recommendations. Thus, this case is distinguishable from Greater
Kansas City Roofing.

       Second, Heller argues that his infusion of personal assets into Bolivar and
Screen Creations belies any attempt on his part to avoid paying the discriminatees by
fraudulently removing Bolivar’s assets. Other than the initial $170,000 provided to
Bolivar to purchase equipment, the funding of which actually came from Screen
Creations, Heller never provided any funds to Bolivar. Although Heller made loans
to Screen Creations, Screen Creations was not liable to the five discriminatees unless
the single employer doctrine applied, which Heller would not have foreseen at the
time. Additionally, Heller only loaned Screen Creations money after he guaranteed
that Screen Creations would not be profitable. Heller had moved all of Screen
Creations’ equipment to Screen Creations de Celaya and did not charge Screen
Creations de Celaya for the equipment’s use. Heller also ceased Screen Creations’
production work and made it into a service business; however, Screen Creations never
charged Screen Creations de Celaya for the services it rendered. Also, although Heller
loaned Screen Creations approximately $300,000, he received an average annual
salary of $120,000 during these years. Hence, Heller’s loaning money to Screen
Creations does not sufficiently undermine our conclusion that substantial evidence
supports a finding that Heller attempted to avoid paying the discriminatees by
fraudulently removing Bolivar’s assets.

      Finally, Heller argues that he moved Bolivar’s assets to Mexico because of
NAFTA and not because he intended to defraud anyone. Although economic
conditions can provide a legitimate reason for transferring assets, substantial evidence
supports a finding that the structure, manner and timing of the equipment transfer here
suggested otherwise. Bolivar could have simply moved its assets to Screen Creations

                                         -15-
de Mexico and maintained title over the equipment, similar to the arrangement
between Screen Creations and Screen Creations de Celaya. Rather, Bolivar
transferred all of its assets to Screen Creations without proper documentation and full
compensation. Therefore, substantial evidence exists to conclude that the transfer of
assets was intended to avoid Bolivar’s legal obligations to the five discriminatees.

      We do not doubt that Heller presented some evidence that weighs against the
Board’s decision to pierce the corporate veil. Indeed, we may have reached a different
conclusion on de novo review. However, Heller’s arguments do not detract from the
substantial evidence in the record as a whole that supports a finding that Heller
intended to avoid Bolivar’s legal obligations to the five discriminatees by fraudulently
removing the corporation’s assets.

III.   CONCLUSION

        We conclude that the Board did not err in piercing the corporate veil because
substantial evidence exists to support the Board’s findings (i) that Heller and the
corporations’ assets were indistinct and (ii) that adherence to the corporate fiction
would sanction a fraud, promote injustice or lead to an evasion of legal obligations.
Accordingly, we enforce the Board’s Order holding Bolivar, Screen Creations, Screen
Creations de Mexico, Screen Creations de Celaya and Heller jointly and severally
liable.

                        ______________________________

                                         -16-


536 F.Supp. 269 (1982)
Leonard GAUTHIER, Plaintiff,
v.
CROSBY MARINE SERVICE, INC., ABC Insurance Company, Crosby Industries, Inc., DEF Insurance Company, Dixie Oil Tools, Inc., GHI Insurance Company, Mark Drilling, Inc., JKL Insurance Company, Exxon Corporation, MNO Insurance Company, L. Griffin, Inc., American Marine Services, Defendants.
Civ. A. No. 79-2366.
United States District Court, E. D. Louisiana.
March 16, 1982.
A. Gordon Grant, Jr., New Orleans, La., for plaintiff.
John B. Peuler, New Orleans, La., for defendants Crosby Marine Services, Inc. and American Home Assur. Co.
Robert M. Contois, Jr., New Orleans, La., for third party defendant L. Griffin, Inc.
CASSIBRY, District Judge:
By motion to amend the judgment previously entered on the maintenance and cure claim, the plaintiff seeks reconsideration of the decision on September 17, 1980 that the defendant Crosby Marine Service, Inc. and third-party defendant L. Griffin, Inc. were entitled to a set-off for the amounts paid to plaintiff Leonard Gauthier under his Blue Cross Hospitalization Policy. The motion of plaintiff to amend is GRANTED.

REASONS
The particular facts involved in this lawsuit constitute a case of first impression in the Fifth Circuit. The issue presented is *270 whether the collateral source rule applies to a maintenance and cure award where the collateral source consists of benefits paid to an injured seaman pursuant to a health insurance policy solely paid for and obtained by the seaman. No case has been cited to the court suggesting that the shipowner could rely upon the receipt by the seaman of such privately procured benefits in mitigation of the shipowner's obligation to pay maintenance and cure.
On September 17, 1980 I entered findings of fact and conclusions of law concerning the maintenance and cure claim in this matter. I found that defendant, Crosby Marine Service, Inc. ("Crosby"), and third party defendant, L. Griffin, Inc. ("Griffin"), owed the plaintiff maintenance and cure. I also found that the Blue Cross Hospitalization Policy which provided payments to the plaintiff for a portion of his medical expenses was privately procured by plaintiff solely at his own expense; I specifically noted that no part of the monthly premiums on this policy was paid by Crosby or Griffin. Despite these findings, I held that Crosby and Griffin were entitled to a setoff for the amounts paid to plaintiff under his Blue Cross policy. After carefully reconsidering this matter, I now find that Crosby and Griffin are not entitled to a set-off.
The general rule is that the vessel owner has no obligation to provide maintenance and cure if it is furnished by others at no expense to the seaman. Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Marine Drilling, Inc. v. Landry, 302 F.2d 127, 128 (5th Cir. 1962); Field v. Waterman Steamship Corporation, 104 F.2d 849 (5th Cir. 1939). Thus, a seaman who receives free medical care at a Public Health Service Hospital cannot recover from the shipowner for the cost of services rendered at the hospital. As far as the seaman is concerned, the services are completely gratuitous; therefore, he has no right to expect his maintenance and cure award from the shipowner to include the cost of the hospital services.[1] However, I find that when an injured seaman receives from a third party payment for medical expenses he has incurred, and these payments are provided pursuant to an insurance policy purchased solely by the seaman, then the maintenance and cure is "furnished at the expense of the seaman"; the shipowner should not be entitled to any off-set for amounts paid under such a policy.
In the present case, the benefits that Mr. Gauthier received from Blue Cross have nothing to do with the maintenance and cure obligation of Crosby and Griffin; the benefits would have been payable even if Mr. Gauthier were ineligible for maintenance and cure. A credit against that obligation therefore, would not be appropriate. If a seaman is able to afford his own health insurance policy, and he makes the prudent decision to invest his money in this manner, then the seaman, not his employer, should be entitled to all of the benefits, both direct and collateral, that might accrue as a result of having such a policy. If a shipowner's liability were reduced by the payments an injured seaman receives under a private health insurance policy, an incentive would exist for delaying the payment of maintenance and cure to induce the seaman to look first to his private insuror. This would be inconsistent with a basic purpose of maintenance and cure: to provide immediate succor, not eventual indemnity. Calmar S. S. Corporation v. Taylor, 303 U.S. 525, 529, 58 S.Ct. 651, 653, 82 L.Ed. 993 (1938).
The situation would be different if the policy were purchased solely by the employer. When such a policy is a voluntary undertaking by the employer to indemnify itself against its possible legal liabilities for payment of maintenance and cure, then a set-off should properly be allowed. Haughton v. Blackships, Inc., 462 F.2d 788, 791 (5th Cir. 1972).
*271 Although maintenance and cure is not founded in tort (which is the usual context in which the collateral source rule comes into play), its purpose in part is to provide "inducement to masters and owners to protect the safety and health of seamen while in service," and also to strengthen the maritime service "by inducing men to accept employment in an arduous and perilous service." Calmar, supra, at 528, 58 S.Ct. at 653. Neither purpose would be served by allowing the shipowner to off-set his maintenance and cure obligation in proportion to payments the seaman receives under a policy purchased solely by the seaman.
The policy underlying the maintenance and cure obligation, and the liberality with which admiralty courts have traditionally interpreted rules devised for the benefit and protection of seamen who are its wards,[2] mandate that a shipowner not be permitted to off-set his maintenance and cure obligation by any amounts an injured seaman receives pursuant to his private health insurance policy.
NOTES
[1]  In a somewhat different context, it is also well established that double recovery by the seaman in Jones Act suits must be avoided where there might be an overlap with a prior award of maintenance and cure. Pelotto v. L. & N. Towing Co., 604 F.2d 396, 404 (5th Cir. 1979).
[2]  Robertson v. Baldwin, 165 U.S. 275, 287, 17 S.Ct. 326, 331, 41 L.Ed. 715 (1897); Cortes v. Baltimore Insular Lines, 287 U.S. 367, 377, 53 S.Ct. 173, 176, 77 L.Ed. 368 (1932); The Arizona v. Anelich, 298 U.S. 110, 123, 56 S.Ct. 707, 711, 80 L.Ed. 1075 (1936).


985 F.2d 578
U.S.v.Hines**
NO. 91-3744
United States Court of Appeals,Eleventh Circuit.
Feb 03, 1993

1
Appeal From:  N.D.Fla.

2
AFFIRMED.

**
 Local Rule 36 case