The 8th Circuit has had another opportunity to review circumstances under which the corporate veil can be pierced, making, in this case, shareholders and officers potentially liable for contributions to union employees’ fringe benefit funds under ERISA. In general, the Court adopted its prior two prong test:

1. Whether there was a unity of interest in the lack of respect given to separate entity of corporations by its shareholders, so personalities and assets of the corporation and individuals are indistinct, and

2. Whether adherence to such corporate fiction sanctions fraud, promotes injustice or leads to evasion of legal obligations.

Because of a comingling of funds, the Court did not have a problem determining that the first part of the test was established. The shareholders had used their personal residences as offices and had taken out a number of mortgages at a time when one could actually remortgage and get cash back, even thought a significant portion of that cash was reinvested in the corporation. The Court, however, did not find sufficient evidence that the corporation was used as a subterfuge to evade legal obligations, justify wrong or perpetrate a fraud. Indeed, they felt that the corporation had actually benefited creditors by actually continuing its operation and had contributed a significant part of the funds of its transactions back into the corporation. The case was sent back to the District Court to make it a determination of that second prong of the test. Carpenters Dist. Council v. JNL Const. Co. (8th Cir. 2010).