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COBRA - Asset Sale


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I'm fairly certain this is the case, but don't see any specific example or rule on point.

Small employer (always under 20 employees) has a group health plan. It's subject to state continuation requirements, but state law does not mandate any coverage after the group policy itself is terminated and there is no rule regarding M&A or successor liability. 

Large employer (always over 20) has a group health plan.

Large employer is acquiring small employer in an asset purchase. The seller's employees and its group health plan will be terminated in connection with closing. 

If an employee of the small seller chooses not to accept the employment offer at closing from the large buyer, does the large buyer have an obligation to offer them COBRA under the large buyer's plan?

I don't think so based on the small employer exception and the fact that even an employer that "grows" into a large employer under COBRA still does not have to offer COBRA to anyone who incurred (what otherwise would be) a triggering event during the time the employer was excepted under the small employer rules. Rev. Rul. 2003-70 doesn't address this fact pattern, presumably because it's already answered by the regs.

The only thing giving me pause is the definition of employer, which includes a successor, but I don't read that as requiring the (pre-sale) small seller to count the (post-sale) large buyer's employees as the seller's own employees prior to the asset sale. Instead, the rules seem more clear that, even if an employer becomes large via an asset sale, it still does not have to offer COBRA to any individual for any event that occurred while the employer was small.

Appreciate any thoughts or confirmation. 

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