LUNDSTEN, J.
f 1. Neenah Foundry Co. appeals the circuit courts order upholding a Labor and Industry Review Commission (LIRC) decision. After Neenah Foundry emerged from Chapter 11 reorganization in federal bankruptcy court, LIRC denied Nee-nah Foundrys request to be treated as a new employer for purposes of Wisconsins unemployment insurance law. The effect of LIRCs decision is that, over a seven-year period, Neenah Foundry will pay between $393,216 and $564,780 more into the unemployment insurance system than it would have paid as a new employer.
¶ 2. Neenah Foundry argues that LIRC erred in interpreting the applicable statute, Wis. Stat. § 108.16(8) (2011-12). More specifically, Neenah Foundry argues that, contrary to LIRCs interpretation, Neenah Foundry is eligible to be treated as a new employer because both of the following are true: (1) the Chapter 11 reorganization proceedings resulted in the transfer of Neenah Foundrys business, as that term is used in § 108.16(8)(a), and (2) Neenah Foundry is not a mandatory successor under § 108.16(8)(e). Neenah Foundry argues in the alternative that federal bankruptcy law preempts LIRCs determination that Neenah Foundry is a mandatory successor.
¶ 3. LIRC and the Department of Workforce Development are respondents. They argue that LIRCs decision is entitled to great weight deference and should be upheld.
¶ 4. We assume, without deciding, that Neenah Foundrys Chapter 11 reorganization resulted in a transfer under Wis. Stat. § 108.16(8)(a). However, even assuming there was a transfer, Neenah Foundry loses on the mandatory successor issue. More specifically, we conclude that LIRC is entitled to great weight deference on the mandatory successor issue, and that LIRC reasonably interpreted § 108.16(8)(e) to determine that Neenah Foundry is a mandatory successor. We reject Neenah Foundrys federal preemption argument. Accordingly, we affirm.
Background
¶ 5. From mid-2008 through 2009, Neenah Foundry saw dramatic declines in demand for its products. Starting in 2009, Neenah Foundry laid off a large number of employees, directly leading to what is referred to as an adverse experience rating and a corresponding increase in its unemployment insurance contribution rates. As Neenah Foundry explains in its briefing:
The [unemployment insurance] system is currently administered by the Department, which sets an employers contribution rate based on [the employers] experience rating. New employers without any experience pay into the fund at a prescribed rate for the first three years, after which their layoff experience is taken into account. If they lay off a lot of employees, they acquire an adverse experience rating and a correspondingly high contribution rate.
¶ 6. In February 2010, Neenah Foundry filed a voluntary petition for Chapter 11 reorganization in federal bankruptcy court. The bankruptcy court confirmed Neenah Foundrys Chapter 11 reorganization plan in July 2010.
¶ 7. Under the Chapter 11 reorganization plan, Neenah Foundry remained a wholly owned subsidiary of a company called NFC Castings, Inc., which in turn remained a wholly owned subsidiary of a company called Neenah Enterprises, Inc. However, Neenah Enterprises common stock was cancelled and new common stock was issued so that Neenah Enterprises came under the ownership of the three companies former creditors. Reorganization also resulted in an entirely new board of directors. However, Neenah Foundrys executive team remained largely the same. Just two of the top eight executive officers were replaced. Moreover, Neenah Foundrys business activities, its assets, its 833 employees, and its physical facility remained the same as of the reorganization plans confirmation date.
¶ 8. After the Chapter 11 reorganization, Nee-nah Foundry filed a request with the Department of Workforce Development to be treated as a new employer in order to obtain a new employer experience rating and, thereby, reduce its unemployment insurance contribution rates. A Department employee denied this initial request, and Neenah Foundry appealed to the Departments appeal tribunal. See Wis. Stat. § 108.10(2) (Any hearing duly requested [on unemployment insurance issues other than benefit claims] shall be held before an appeal tribunal. . . .). The appeal tribunal, an administrative law judge, affirmed the Departments initial determination.
¶ 9. Neenah Foundry sought review before LIRC. LIRC concluded that there was no transfer within the meaning of Wis. Stat. § 108.16(8)(a) because there were not distinct transferor and transferee entities, such that Neenah Foundry transferred nothing. In addition, LIRC determined that, even if there was a transfer, Neenah Foundry was not entitled to the new employer rate because the surviving entity was a mandatory successor. LIRC also rejected Neenah Foundrys preemption argument. We reference additional facts as needed below.
Discussion
¶ 10. The parties agree on the general legal framework. When a transferor employer transferís] an asset or activity, as those terms are used in the relevant statutes and administrative code, the transferee employer may become eligible to pay unemployment insurance contribution rates at the new employer rate. See Wis. Stat. §§ 108.16(8)(a) and (j) and 108.18(2); Wis. Admin. Code § DWD 115.11 (Dec. 2014); see also Wis. Admin. Code § DWD 115.01 (Dec. 2014) (defining what does and does not constitute a transfer). Stated another way, the transferee employer may be eligible for a new employer experience rating. If, however, the transferee employer is deemed a mandatory successor according to statutory criteria, the transferee employer is ineligible for the new employer rate. See § 108.16(8)(e) and (f); Wis. Admin. Code §§ DWD 115.05 and 115.10 (Dec. 2014). Stated another way, a mandatory successor must retain the adverse experience rating.
¶ 11. We review LIRCs decision, not the circuit courts decision. Oshkosh Corp. v. LIRC, 2011 WI App 42, ¶ 6, 332 Wis. 2d 261, 796 N.W.2d 217. Neenah Foundry argues that LIRC erred because the Chapter 11 proceedings resulted in a transfer, as that term is used in Wis. Stat. § 108.16(8)(a), and because Neenah Foundry is not a mandatory successor under § 108.16(8)(e). Additionally, Neenah Foundry argues that LIRC erred because federal bankruptcy law preempts LIRCs determination that Neenah Foundry is a mandatory successor.
¶ 12. As we understand Neenah Foundrys briefing, the net result for Neenah Foundry is the same if either of the following is true: (1) there was no transfer, or (2) assuming there was a transfer, Neenah Foundry meets the criteria for a mandatory successor. Thus, as far as we can tell, there is no need to address the transfer issue if Neenah Foundry is a mandatory successor. We assume, without deciding, that Neenah Foundrys Chapter 11 reorganization resulted in a transfer under Wis. Stat. § 108.16(8)(a) because, even assuming there was a transfer, Neenah Foundry loses on the mandatory successor issue for the reasons we explain below.
¶ 13. In determining that Neenah Foundry was a mandatory successor, LIRC interpreted and applied Wis. Stat. § 108.16(8)(e), which provides that an employer is a mandatory successor if three listed conditions are met. Neenah Foundry effectively concedes that two of the three conditions are met here. The company disputes only one of the conditions, namely, whether pre-Chapter-11 Neenah Foundry and post-Chapter-11 Neenah Foundry are owned, managed, or controlled in whole or in substantial part, either directly or indirectly by legally enforceable means or otherwise, by the same interest or interests. See § 108.16(8)(e)l. LIRC determined that post-Chapter-11 Neenah Foundry remained under direct management in substantial part by the same interests because, after its reorganization, Neenah Foundry retained six of its eight pre-Chapter 11 executive officers.
¶ 14. Our remaining analysis is in three parts. First, we explain why we conclude that LIRCs mandatory successor determination under Wis. Stat. § 108.16(8)(e) is entitled to great weight deference. Second, we explain why we conclude that LIRC reasonably interpreted § 108.16(8)(e). And, third, we reject Neenah Foundrys federal preemption argument.
(e) Notwithstanding par. (b), a transferee is deemed a successor for purposes of this chapter, if the department determines that all of the following conditions are satisfied:
1. At the time of business transfer, the transferor and the transferee are owned, managed, or controlled in whole or in substantial part, either directly or indirectly by legally enforceable means or otherwise, by the same interest or interests. Without limitation by reason of enumeration, it is presumed unless shown to the contrary that the same interest or interests includes the spouse, child, or parent of the individual who owned, managed or controlled the business, or any combination of more than one of them.
2. The transferee has continued or resumed the business of the transferor, either in the same establishment or elsewhere; or the transferee has employed substantially the same employees as those the transferor had employed in connection with the business transferred.
3. The same financing provisions under s. 108.15, 108.151, 108.152, or 108.18 apply to the transferee as applied to the transferor on the date of the transfer.
1. Level Of Deference
¶ 15. The parties dispute the level of deference that we apply to LIRCs determination that Neenah Foundry is a mandatory successor under Wis. Stat. § 108.16(8)(e). For the reasons below, we conclude that great weight deference is appropriate.
¶ 16. Although courts are never bound by an agencys interpretation of a statute, courts will under certain circumstances give deference to an agencys statutory interpretation. Mercy Care Ins. Co. v. Wisconsin Commr of Ins., 2010 WI 87, ¶ 27, 328 Wis. 2d 110, 786 N.W.2d 785. More specifically:
A reviewing court accords an agencys statutory interpretation no deference when the issue is one of first impression, when the agency has no experience or expertise in deciding the legal issue presented, or when the agencys position on the issue has been so inconsistent as to provide no real guidance. When no deference to the agency decision is warranted, the court interprets the statute independently and adopts the interpretation that it deems most reasonable.
A reviewing court accords due weight deference when the agency has some experience in an area but has not developed the expertise that places it in a better position than the court to make judgments regarding the interpretation of the statute. When applying due weight deference, the court sustains an agencys interpretation if it is not contrary to the clear meaning of the statute — unless the court determines that a more reasonable interpretation exists.
Finally, a reviewing court accords great weight deference when each of four requirements are met: (1) the agency is charged by the legislature with the duty of administering the statute; (2) the agencys interpretation is one of long standing; (3) the agency employed its expertise or specialized knowledge in forming its interpretation; and (4) the agencys interpretation will provide uniformity and consistency in the application of the statute. When applying great weight deference, the court will sustain an agencys reasonable statutory interpretation even if the court concludes that another interpretation is equally or more reasonable. The court will reverse the agencys interpretation if it is unreasonable — if it directly contravenes the statute or the state or federal constitutions, if it is contrary to the legislative intent, history, or purpose of the statute, or if it is without a rational basis.
Id., ¶¶ 29-31 (citations omitted).
¶ 17. Neenah Foundry argues that there are two reasons why we should give no deference to LIRCs interpretation of the mandatory successor statute. We reject both.
¶ 18. First, Neenah Foundry contends that the question presented — the applicability of § 108.16(8) to a reorganized debtor emerging from chapter 11 bankruptcy under a confirmed plan of reorganization — is one of first impression in Wisconsin. As we understand it, what Neenah Foundry means to argue is that, although LIRC has extensive experience interpreting the statute, LIRC has never before applied Wis. Stat. § 108.16(8) to an entity emerging from Chapter 11 reorganization.
¶ 19. Neenah Foundrys first impression argument misses the mark because it misconstrues the meaning of first impression in this context. We have consistently held that an agency decision is not automatically one of first impression and subject to de novo review simply because the agency has been presented with a particular fact situation it has not previously ruled upon. Lopez v. LIRC, 2002 WI App 63, ¶ 13, 252 Wis. 2d 476, 642 N.W.2d 561. Rather, an issue of first impression refers to a situation in which an agency is interpreting a statutory provision for the first time. Id. Here, there is no question that LIRC has previously interpreted the mandatory successor provisions in the statute, as evidenced in part by prior LIRC decisions that Neenah Foundry cites. See Aggressive Pitbull Sec. Inc., No. S0500123MW (LIRC, Feb. 27, 2008); Sunshine Biscuits Inc. & Keebler Co., No. S9700259MD (LIRC, Nov. 18, 1998); see also Edis Trucking Inc., No. S0900091MW (LIRC, July 23, 2013); Weatherguard Sys. Inc., No. S0600015AP (LIRC, Feb. 22, 2008).
¶ 20. Second, Neenah Foundry appears to argue that we should give no deference to LIRC because the agencys position on the issue has been so inconsistent as to provide no real guidance. See MercyCare, 328 Wis. 2d 110, ¶ 29. The problem here is that Neenah Foundry points to no inconsistencies in decision making by LIRC, the pertinent agency. Rather, Neenah Foundry relies on alleged inconsistencies that arise when comparing LIRCs reasoning to the circuit courts or Departments reasoning. Neenah Foundry cites no authority to support the proposition that this inconsistency matters and, therefore, we consider the inconsistency argument no further.
¶ 21. Accordingly, we reject Neenah Foundrys contention that LIRCs decision is entitled to no deference. The question remains then whether due weight deference or great weight deference is appropriate.
¶ 22. The Department and LIRC both argue that LIRCs decision should receive great weight deference. We agree that LIRCs mandatory successor determination is entitled to great weight deference.
¶ 23. As we have seen, a reviewing court accords great weight deference when four criteria are met:
1) the agency is charged by the legislature with the duty of administering the statute;
2) the agencys interpretation is one of long standing;
3) the agency employed its expertise or specialized knowledge in forming its interpretation; and
4) the agencys interpretation will provide uniformity and consistency in the application of the statute.
Id., ¶ 31. Neenah Foundry does not seriously dispute the first and fourth criteria. That leaves the second and third.
¶ 24. The second (long standing) and third (expertise) criteria are closely related, and the critical inquiry regarding both is whether the agency has significant experience interpreting and applying the statutory provision at issue to a variety of factual situations. In an apparent reference to both of these criteria, we explained in Lopez:
[I]f the agency has experience in administering the particular statutory scheme, derived from considering a variety of factual situations and circumstances, then great weight deference is appropriate. We conclude that is the case here. The legislature has charged LIRC with the authority to make determinations [of the type at issue in Lopez]. LIRC has applied [the statute at issue in Lopez] in many situations, and both parties point to prior decisions as the bases for their respective arguments. Consequently, LIRC has developed an expertise in applying the statute to a variety of fact situations.
Lopez, 252 Wis. 2d 476, ¶ 13 (citation omitted); see also Brown v. LIRC, 2003 WI 142, ¶¶ 17-18, 267 Wis. 2d 31, 671 N.W.2d 279 (applying great weight deference to LIRCs interpretation and application of statute when LIRC had extensive experience interpreting the statute and had developed pertinent specialized knowledge through that experience); City of Appleton Police Dept v. LIRC, 2012 WI App 50, ¶¶ 15, 17, 19-20, 340 Wis. 2d 720, 813 N.W.2d 237 (applying great weight deference to LIRCs interpretation and application of statute to new fact situation when LIRC had extensive experience interpreting statute).
¶ 25. We follow the same approach here. Much as LIRC had experience with the pertinent statutory provisions at issue in Lopez, Brown, and City of Appleton, LIRC here has experience interpreting and applying the mandatory successor provisions in a variety of factual situations, again as evidenced by prior LIRC decisions, including decisions that Neenah Foundry cites. See ¶ 19, supra.
¶ 26. Indeed, we do not perceive Neenah Foundry to be seriously arguing that LIRC has not repeatedly interpreted and applied the mandatory successor provisions. Instead, as we understand it, Neenah Foundrys arguments against great weight deference appear to focus on whether LIRC has previously determined whether Chapter 11 reorganization would result in a transfer and whether LIRC has the necessary experience or expertise to make a transfer determination consistent with federal bankruptcy law. While the transfer issue arguably depends, in part, on federal bankruptcy law, we see nothing about the mandatory successor issue that similarly depends on bankruptcy law. Rather, the mandatory successor issue requires LIRC to compare Neenah Foundrys ownership, management, and control before and after the Chapter 11 proceedings. Indeed, Neenah Foundry concedes in its briefing that LIRC must make this comparison without regard to the intervening transfer or the debtors status during the Chapter 11 proceedings. Accordingly, we do not find Neenah Foundrys arguments against great weight deference persuasive as to the Departments mandatory successor determination.
¶ 27. To sum up, we agree with the Department and LIRC that LIRCs mandatory successor determination is entitled to great weight deference. As we indicated earlier, when we apply great weight deference, we uphold a reasonable agency interpretation even if we conclude that another interpretation is equally or more reasonable. MercyCare, 328 Wis. 2d 110, ¶ 31. In the next section, we examine whether LIRCs determination is a reasonable interpretation of the disputed mandatory successor provision.
2. Reasonableness Of LIRCs Mandatory Successor Determination
¶ 28. To repeat, our focus here is on language in Wis. Stat. § 108.16(8)(e)l. conditioning mandatory successor status on whether pre-Chapter-11 Neenah Foundry and post-Chapter-11 Neenah Foundry are owned, managed, or controlled in whole or in substantial part, either directly or indirectly by legally enforceable means or otherwise, by the same interest or interests. See § 108.16(8)(e)l.
¶ 29. In interpreting and applying this statutory language, LIRC appeared to acknowledge that, pursuant to Neenah Foundrys reorganization, new stockholders took ownership of Neenah Foundrys parent companies, a new board of directors was appointed, and the new board appointed a new interim president/chief executive officer and a new interim chief financial officer. However, LIRC determined that Neenah Foundrys retention of six of its eight top executives, including its chief operating officer and corporate controller, constituted direct management in substantial part by the same interests. More specifically, LIRC reasoned:
[Neenah Foundrys parent company] did put in place a completely new board of directors, which in turn appointed a new interim president and CEO and a new interim CFO. It retained six of the eight pre-petition officers, however, with four of them staying in their pre-petition positions, including COO Andrews and VP-Corporate Controller Gitter. Where the line is drawn is going to vary, depending upon the percentages of retention and the positions in which individuals are retained, but the present scenario easily constitutes direct management in substantial part by the same interests.
Thus, LIRC focused on who managed Neenah Foundry before and after the Chapter 11 proceedings instead of who owned or controlled Neenah Foundry before and after those proceedings. See Wis. Stat. § 108.16(8)(e)l.
¶ 30. We conclude that LIRCs interpretation of the statute is reasonable. As the Department aptly puts it, the statute has unmistakable breadth. The statute broadly refers to whether an employer is owned, managed, or controlled in whole or in substantial part, either directly or indirectly by legally enforceable means or otherwise, by the same interest or interests. Wis. Stat. § 108.16(8)(e)l. (emphasis added). Given this broad language and Neenah Foundrys retention of six of its eight officers, including its chief operating officer and corporate controller, LIRC reasonably determined that Neenah Foundry was, in the words of the statute, managed... in substantial part. . . directly ... by the same . . . interests as before the Chapter 11 reorganization. See id.
¶ 31. Neenah Foundrys arguments to the contrary seem to start from the assumption that only board members, not officers, manage a corporation within the meaning of Wis. Stat. § 108.16(8)(e)l. or corporate law more generally. However, Neenah Foundry provides no support for this assumption. And, even if Neenah Foundrys assumption represented one reasonable interpretation of manage, we conclude that the Department reasonably gave manage a broader interpretation to include the duties of Neenah Foundrys corporate officers. See 2A Fletcher Cyclopedia of the Law of Corporations § 665, at 233 (rev. vol. 2009) (In all but the smallest companies, . . . the board delegates managerial responsibilities to subordinate officers or agents . . . .); see also Wis. Stat. §§ 180.0840 and 180.0841 (providing that [a] corporation shall have the officers described in its bylaws or appointed by its board of directors and that [e]ach officer has the authority and shall perform the duties set forth in the bylaws or . . . prescribed by the board of directors).
¶ 32. Neenah Foundrys primary remaining argument, as we understand it, is a variation on the same theme, that is, that Neenah Foundrys officers do not manage the corporation. Specifically, Neenah Foundry argues that corporate officers — unlike stockholders and the board of directors — cannot be interests that direct the company under the statute because officers are not interests, but rather serve the interests of the owners and the board. The effect of this interpretation of interests is to make officers irrelevant under the statute in terms of who managed the company. Assuming for argument sake only that this is a reasonable interpretation of the statute, we are satisfied that LIRCs interpretation is also reasonable. Plainly, a companys executive officers typically engage in the management of a company and, under a broad interpretation of the statute, are persons with an interest in the company, even if they also serve the interests of others.
¶ 33. Neenah Foundry also appears to argue that, even if officers sometimes manage or control a corporation under Wis. Stat. § 108.16(8)(e)l., there is no basis to conclude that Neenah Foundrys retained officers managed here because there was no evidence regarding their duties. We disagree. We observe that, to the extent this argument adds to Neenah Foundrys prior arguments, it is a factual argument, and the question is simply whether the record supports a reasonable inference that Neenah Foundrys retained officers exercised significant management authority. See CBS, Inc. v. LIRC, 219 Wis. 2d 564, 570, 579 N.W.2d 668 (1998) ([W]e must consider conclusive any finding by the commission based upon a reasonable inference . . . .). Based on the retained officers titles as already described, and on Neenah Foundrys 833-employee size, we conclude that LIRC could reasonably infer that the retained officers exercised significant management authority.
¶ 34. In an argument that seems inconsistent with its no evidence argument, Neenah Foundry asserts that some of its retained officers received new responsibilities. And, indeed, the record shows that some of the officers received different titles. Taking it as true that those officers also received new responsibilities, that does not render LIRCs decision unreasonable.
¶ 35. We recognize that reasonable minds may differ on whether management has changed in substantial part under facts like those here. However, this is a question that LIRC is better suited than this court to decide. And, in this respect, we conclude that LIRC made a reasonable decision based on the statutory language and the facts before it.
¶ 36. Neenah Foundrys remaining argument on the mandatory successor question relates to language in Wis. Stat. § 108.16(8)(e) requiring that the Department determineD that each of the three mandatory successor conditions is met. Neenah Foundry asserts that the Department here never relied on the managed theory that LIRC used and, therefore, the Department could not have determined that Reorganized Neenah was managed by the same interests (emphasis added). We are not persuaded.
¶ 37. Although it is true that the Department has not relied on the specific managed theory that LIRC used in its decision, the Department has argued more generally throughout these proceedings that Neenah Foundry satisfies the owned-managed-or-controlled-by-the-same-interests condition in Wis. Stat. § 108.16(8)(e)l. We see no reason why the Department had to advance the same specific reasoning LIRC used in its decision in order to determine that Neenah Foundry satisfied this condition. And, Neenah Foundry does not argue that there is some other reason the Department failed to make the required determination.
¶ 38. In sum as to LIRCs mandatory successor determination, we conclude that LIRC reasonably interpreted Wis. Stat. § 108.16(8)(e) to conclude that Neenah Foundry is a mandatory successor. We turn finally to Neenah Foundrys federal preemption argument.
3. Preemption
¶ 39. Neenah Foundry argues that federal law preempts LIRCs determination that Neenah Foundry is a mandatory successor. The parties do not provide any standard of review arguments particular to this issue. Regardless, we conclude that our standard of review does not matter because we agree with LIRC that Neenah Foundrys preemption argument is not persuasive. That is, even applying the no-deference standard of review, which is the standard most favorable to Neenah Foundry, we would uphold LIRC on this issue.
¶ 40. Neenah Foundry argues that federal law preempts LIRCs mandatory successor determination because, in Neenah Foundrys words, federal bankruptcy law prevents the application of a prebankruptcy experience rating to increase the reorganized entitys [unemployment] taxes. Neenah Foundry goes on to assert that a Chapter 11 reorganization free[s] [the debtor] from pre-petition interests, including an adverse experience rating.
¶ 41. As the primary support for its assertions, Neenah Foundry relies on five cases: Massachusetts Dept of Unemployment Assistance v. OPK Biotech, LLC, 484 B.R. 860 (B.A.P. 1st Cir. 2013); Hollytex Carpet Mills, Inc. v. Oklahoma Empt Sec. Commn, 73 F.3d 1516 (10th Cir. 1996) (adopting an unpublished district court decision, Case No. CIV-95-48-R); In re USA United Fleet, Inc., 496 B.R. 79 (Bankr. E.D.N.Y. 2013); In re Tougher Indus., Nos. 06-12960 and 07-10022, 2013 WL 1276501 (Bankr. N.D.N.Y. Mar. 27, 2013); and Ouray Sportswear, LLC v. Industrial Claim Appeals Office, 315 P.3d 1280 (Colo. App. 2013).
¶ 42. We begin with Hollytex, which actually contradicts Neenah Foundrys preemption argument. We then turn to the other four cases and explain why we agree with the Department that those cases are distinguishable.
¶ 43. Contrary to Neenah Foundrys argument, the court in Hollytex explained that all courts considering the issue . . . [have held] that a state agency is, under most circumstances, permitted to utilize a Chapter 11 debtors pre-petition history and experience factors when determining unemployment contribution rates for the reorganized debtor after confirmation of a plan. Hollytex, 73 F.3d at 1522 (emphasis added); see also Michigan Empt Sec. Comm n v. Wolverine Radio Co., 930 F.2d 1132, 1146 (6th Cir. 1991) (cited in Hollytex and stating: We find no frustration of federal law by [a state agency] assigning successor liability to [the successor entity], as [the agencys] transfer of [the predecessor entity]s experience rating does not violate the reorganization plan nor clearly conflict with any provisions of the Bankruptcy Code.); In re Primrose Bedspread Corp., 67 B.R. 659, 661 (Bankr. D.N.J. 1986) (cited in Hollytex and rejecting debtors argument that its pre-Chapter-11 petition experience constituted a debt).
¶ 44. The court in Hollytex went on to explain that the preemption analysis is different, however, when a debtor-employer receives an adverse experience rating because of its failure to make pre-Chapter 11 unemployment contributions, as contrasted with other factors, such as the companys history of laying off workers. See Hollytex, 73 F.3d at 1522-23. The court reasoned that there is preemption in the delinquent contribution situation because the delinquency is a debt that is discharged, and an experience rating based on a discharged claim or debt is itself a bankruptcy-related debt that must be deemed discharged. See id. at 1522-24. [A]n increased contribution rate based upon the application of [state law] to .. . unpaid, pre-petition unemployment contributions is a debt which was discharged upon confirmation of [the] . .. Chapter 11 Plan of reorganization. Id. at 1523.
¶ 45. Here, there is no dispute that Neenah Foundrys adverse experience rating is not based on delinquent contributions. Neenah Foundry stipulated below that it was current in paying its unemployment insurance contributions as of the date it filed its Chapter 11 petition. As we have seen, Neenah Foundrys adverse experience rating is instead based on Neenah Foundrys layoff history. Thus, under Hollytex, there was no resulting debt that was discharged in the bankruptcy.
1 46. We turn to the other four cases on which Neenah Foundry places primary reliance: OPK Bio-tech, USA United Fleet, Tougher Industries, and Ouray Sportswear. As the Department points out, each of these cases is distinguishable because, unlike here, each involved an asset sale from a debtor to a third-party purchaser and a particular corresponding asset sale provision in the bankruptcy code, 11 U.S.C. § 363(f), that was not applied in Neenah Foundrys situation. See OPK Biotech, 484 B.R. at 861-62; USA United Fleet, 496 B.R. at 81-82; Tougher Indus., Nos. 06-12960 and 07-10022, 2013 WL 1276501, at *1; Ouray Sportswear, 315 P.3d at 1281. This particular code section, § 363(f), provides that [t]he trustee may [if certain conditions are met] sell property.. . free and clear of any interest . .. of an entity other than the estate (emphasis added). In each of the four cases, the court applied § 363(f) to conclude that the debtors experience rating could not be transferred to the purchasing entity. OPK Biotech, 484 B.R. at 866-70; USA United Fleet, 496 B.R. at 83, 85-87, 89; Tougher Indus., Nos. 06-12960 and 07-10022, 2013 WL 1276501, at *6-8; Ouray Sportswear, 315 P.3d at 1281, 1282-84.
¶ 47. In its reply brief on appeal, Neenah Foundry all but concedes that these four cases are distinguishable for the reason the Department says, but Neenah Foundry argues that the different bankruptcy code provision that applies here, 11 U.S.C. § 1141(c), contains similar language to that in 11 U.S.C. § 363(f). Section 1141(c) states: [Subject to certain exceptions], after confirmation of a plan, the property dealt with by the plan is free and clear of all claims and interests of creditors, equity security holders, and of general partners in the debtor. (Emphasis added.)
¶ 48. Neenah Foundrys focus appears to be on the fact that the two bankruptcy code provisions contain similar interest language: in 11 U.S.C. § 363(f), property being made free and clear of any interest, and in 11 U.S.C. § 1141(c), property being made free and clear of all.. . interests. And, as we have said, Neenah Foundry argues that its adverse experience rating is an interest.
¶ 49. An immediate problem we see with Neenah Foundrys argument analogizing the two statutes is that the terms interest and interests have different modifiers in the different code provisions. Specifically, 11 U.S.C. § 363(f) refers to the interest of any entity other than the bankruptcy estate, while 11 U.S.C. § 1141(c) refers more narrowly to the interests of creditors, equity security holders, and ... general partners in the debtor. The Department is plainly not an equity security holder or general partner in Neenah Foundry, so the Department would need to be a creditor for § 1141(c) to apply here. And, Neenah Foundry provides little by way of explanation as to why the Department might be considered a creditor under § 1141(c).
¶ 50. For example, Neenah Foundry does not point to a bankruptcy code provision that supports classifying the Department as a creditor. Rather, Nee-nah Foundry relies on the fact that Neenah Foundry continued to incur unemployment compensation obligations during the Chapter 11 proceedings and, along this line, cites to In re Continental Minerals Corp., 132 B.R. 757, 759 (Bankr. D. Nev. 1991), as support for the proposition that this made the Department a creditor. We are not persuaded.
¶ 51. In Continental Minerals, unlike the situation here, the unemployment insurance agency made a claim in the bankruptcy proceedings for unpaid, prepetition unemployment compensation contributions. See id. at 757. Moreover, even if the unemployment compensation contributions that Neenah Foundry had incurred during the Chapter 11 proceedings were an interest of a creditor, it does not clearly follow that Neenah Foundrys experience rating is such an interest.
¶ 52. In short, if there is some good reason why the Department should be deemed a creditor under 11 U.S.C. § 1141(c), and why Neenah Foundrys experience rating should be deemed an interest of a creditor under that code provision, Neenah Foundry fails to identify and explain it. Neenah Foundry therefore also fails to persuade us that § 1141(c) has the same effect here as 11 U.S.C. § 363(f) does in asset sale cases. There may be additional reasons why § 363(f) and those cases are distinguishable, but it is enough to say here that Neenah Foundry fails to identify and explain why the Department might be a creditor.
¶ 53. Finally, Neenah Foundry directs our attention to language in its Chapter 11 reorganization plan to support its federal preemption argument. Specifically, Neenah Foundry points to reorganization plan language stating that all property of the Chapter 11 Estates vests in Neenah Foundry free and clear of all Claims, Liens, charges, other encumbrances and Interests. Neenah Foundry asserts, without citation to authority or further explanation, that its experience rating and corresponding account balance with the Department was a charge or encumbrance under that reorganization plan language. This argument is undeveloped, and our independent effort to discern merit in it has come up short. Therefore, we consider it no further. See State v. Pettit, 171 Wis. 2d 627, 646-47, 492 N.W.2d 633 (Ct. App. 1992) (we need not consider inadequately developed arguments).
¶ 54. In sum, Neenah Foundry fails to persuade us that federal bankruptcy law preempts LIRCs mandatory successor determination.
Conclusion
¶ 55. For the reasons stated above, we conclude that LIRC reasonably determined that Neenah Foundry is a mandatory successor and that LIRCs determination is not preempted. Accordingly, we affirm the circuit courts order upholding LIRCs decision.
By the Court. — Order affirmed.
All references to the Wisconsin Statutes are to the current version of the statutes, the 2011-12 version. Although Neenah Foundrys unemployment insurance contribution rates for several years are at issue, the parties arguments do not indicate that there have been any pertinent changes to the applicable statutes during that time.
The Seventh Circuit Court of Appeals summarized Chapter 11 reorganization as follows:
By filing under Chapter 11, the debtors became debtors-in-possession, authorized to continue operating their businesses while preparing a plan of reorganization, to be approved by their creditors. This plan, and an accompanying disclosure statement, would be reviewed and approved by the bankruptcy court and then circulated to all creditors. Upon approval of the plan by the creditors, it would become a binding contract between the debtors and the creditors.
Peterson v. Scott, 172 F.3d 959, 962 (7th Cir. 1999) (citations omitted). Debtor-in-possession status is typical during Chapter 11 proceedings, but the court may appoint a trustee to oversee the reorganization according to criteria in 11 U.S.C. § 1104. See Scott, 172 F.3d at 962-64.
We omit additional, non-pertinent details regarding Nee-nah Foundrys reorganization plan. For example, it appears that, pursuant to the plan, Neenah Foundry filed documents converting Neenah Foundry from a Wisconsin corporation to a Delaware corporation while retaining its name and federal employer identification number. The parties dispute whether Neenah Foundry is the same legal entity or a new legal entity as a result of the Chapter 11 proceedings but, as far as we can tell, this dispute pertains only to the transfer issue that we do not address on the merits. We therefore do not weigh in on this same-entity-or-new-entity dispute.
The parties use the term mandatory successor, as do we. The term is not in the applicable statute, but it does appear in the administrative code. See Wis. Admin. Code § DWD 115.05; see also First Fed. Sav. Bank v. LIRC, 200 Wis. 2d 786, 793, 547 N.W.2d 796 (Ct. App. 1996) (using the term).
To be precise, Neenah Foundry argues that there were two transfers, one when Neenah Foundry filed its Chapter 11 petition for reorganization in bankruptcy court, and another when the bankruptcy court confirmed Neenah Foundrys Chapter 11 reorganization plan. However, Neenah Foundry presents no argument as to why it might matter here whether there was one transfer or two, and we see no reason why we need to address the question.
Wisconsin Stat. § 108.16(8)(e) provides, in full:
The remaining four officers held the following titles after reorganization: Vice President-Industrial Sales and Operations, Vice President-Purchasing, Vice President-Municipal Sales and Operations, and Vice President-Technology.
The parties dispute whether Neenah Foundry or the Department has the burden of proof. We see no need to weigh in on this dispute. Assuming without deciding that the Department has the burden, the Department met its burden because, as we say in the text, the retained officers titles and Neenah Foundrys size support an inference that the officers exercised significant management authority. Neenah Foundry was free to marshal facts to the contrary, but did not.
Our characterization of Neenah Foundry as current in its contributions is an accurate characterization of Neenah Foundrys stipulation, but it oversimplifies matters to some degree. The record shows that, as part of the unemployment insurance system, the Department maintains an account for each employer that can have a positive or negative balance related to the employers experience rating. And, here, it appears that Neenah Foundry had a negative balance at the time it filed its Chapter 11 petition. However, we do not understand Neenah Foundry to be arguing that this negative balance makes Neenah Foundrys situation akin to a delinquency situation like the one in Hollytex Carpet Mills, Inc. v. Oklahoma Employment Security Commission, 73 F.3d 1516 (10th Cir. 1996). Moreover, if Neenah Foundry meant to make that argument, it has failed to make that clear, let alone backed up the argument with sufficient factual or legal support.