PBGC Reporting: Selected Reportable Events

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1 PBGC, Underfunded Plans, and Distressed Companies: A Practical Guide Mid-Winter Meeting Committee on Employee Benefits ABA Section of Labor and Employment Law San Antonio, Texas February 3 6, Harold J. Ashner, Keightley & Ashner LLP Overview PBGC Reporting Traps for the Unwary Penalties and Subpoenas Early Warning Program Negotiations PBGC Pursuit of Downsizing Liability Distress Terminations Involuntary (PBGC-Initiated) Terminations Bankruptcy Claims and Disputes Copyright 2010 by Harold J. Ashner 2 Reportable Events In General Traps for the Unwary Post-event reporting: the challenges Required sporadically, not periodically May relate to distant controlled group member Rules not always intuitive Multiple plans in controlled group watch out! Particular reportable event may occur for two or more plans in controlled group Determine waivers, extensions, and required information separately for each plan! 3 4 Reportable Events In General (Cont.) Multiple events watch out! Two or more events may arise at about same time out of same or related facts Determine waivers, extensions, and required information separately for each event! Use optional Form 10 (significantly reduced initial information submission) Selected Reportable Events Change in controlled group Covers plan transfer with no CG makeup change Covers merger of two entities within CG Timing keyed to binding agreement, not closing Active participant reduction May occur any day (not annual snapshot) Need not occur based on discrete event May need to report twice in same plan year Event may occur on 1/1 without any reduction 4062(e) event: waivers/extensions inapplicable 5 6

2 Selected Reportable Events (Cont.) Transfers of benefit liabilities Generous waiver (use PBGC safe-harbor assumptions) But may still be reportable (per informal PBGC guidance) as active participant reduction! Extraordinary dividend reportable event Does not match IRC definition Captures significant value transfer to any CG member Form 200 Statutory lien and Form 200 triggered when missed contributions (with interest) > $1M Note PBGC s calculation methodology (see PBGC Opinion Letter )! Add up all missed/unpaid contributions (each w/interest to current missed contribution date) Total may significantly exceed pre-ppa deficiency or PPA shortfall under funding rules! Smaller plans/employers may hit $1M before they know it! 7 8 Form 200 (Cont.) Significant financial consequences Statutory lien, loan defaults, etc. Maximum penalty ($1,100 per day) likely for late Form 200 PBGC/creditor workout or bankruptcy Section 4010 Annual Reports Pre-PPA thresholds $50M aggregate UVBs test (most common trigger) affects larger plans/employers But some smaller plans/employers may hit: $1M outstanding waiver threshold $1M lien threshold (note PBGC methodology!) 9 10 Section 4010 Annual Reports (Cont.) Post-PPA threshold $50M aggregate UVBs test replaced by one-plan FTAP < 80% test Absent PBGC relief, could have affected even smallest plans/employers! PBGC final rule: exempt if aggregate plan underfunding not above $15M But exemption inapplicable to other two thresholds (re waivers & missed contributions) Note: PBGC regulations require you to report that you no longer need to report! Penalties and Subpoenas 11 12

3 Penalties and Subpoenas Penalty exposure up to $1,100 per day for each person required to report or disclose Guideline penalties generally much lower $25 per day for first 90 days $50 per day thereafter Reduced for plans with < 100 participants (e.g., 60 participants: 60% x total) with $5 daily floor Overall cap of $100 x participant count PBGC may assess penalty above or below guideline amount where warranted Penalties and Subpoenas (Cont.) Larger penalty may be warranted where: Willful failure Pattern or practice Substantial harm to participants or PBGC PBGC normally assesses maximum penalty for Form 200 and advance reporting failures PBGC has discretion re whether/how much to assess/waive Penalties and Subpoenas (Cont.) Reasonable cause waiver guidance in proposed policy statement issued in 2001 Proposal largely reflects PBGC s current practices (per 2001 Blue Book guidance and 2009 ABA/JCEB Meeting) Note: no relief based on claim outside advisor responsible for failure (unless advisor has reasonable cause) Penalty authority applies only where time limit in certain statutory/regulatory provisions PBGC may subpoena information, whether or not it is subject to penalty authority Comply with PBGC information requests! Early Warning Program Negotiations Early Warning Program Negotiations Early Warning Program Also called Risk Mitigation Program Focus: increased risk resulting from corporate transaction PBGC staffing: financial analysts, actuaries, accountants, and attorneys Controlled group liability is key Early Warning Program Negotiations (Cont.) Joint and several controlled group liability Applies to: Unpaid contributions and related excise taxes Ongoing/termination premiums (and penalties/interest) Plan termination liability (unfunded benefit liabilities) Certain information penalties (ERISA Section 4071) Each member liable for full amount PBGC liens ($1M+ missed contributions; portion of termination liability) can reach all CG property All CG members are considered in distress and PBGC-initiated terminations 17 18

4 Early Warning Program Negotiations (Cont.) PBGC concerns: Breakup of controlled group (e.g., sale of crown jewel subsidiary) Transfer of plan to weaker controlled group Movement of value between/among CG members Highly leveraged transaction PBGC leverage PBGC-initiated termination (the nuclear option) Evade or avoid lawsuit Early Warning Program Negotiations (Cont.) Your leverage Save jobs (political/public relations leverage) Plan will continue (financial leverage) Consider contacting PBGC first (where contact is inevitable, it may be that the earlier, the better) Settlement possibilities include: Additional contribution to plan Retention of plan by strong seller Guarantee by seller if future plan termination Transfer to plan of security interest (e) Statutory Language One sentence, many questions: PBGC Pursuit of Downsizing Liability If an employer ceases operations at a facility in any location and, as a result of such cessation of operations, more than 20 percent of the total number of his employees who are participants under a plan established and maintained by him are separated from employment, the employer shall be treated with respect to that plan as if he were a substantial employer under a plan under which more than one employer makes contributions and the provisions of sections 4063, 4064, and 4065 shall apply (e) Statutory Problem Cross-reference to multiple-employer plan withdrawal liability rules is unworkable Statutory liability Employer liability (full plan) x withdrawing employer s share of past contributions 4062(e) context: only one employer 100% liability for 21% reduction? Bottom line: 4062(e) essentially unenforceable without regulatory solution PBGC may determine liability on any other equitable basis prescribed in regulations 4062(e) Regulatory Solution PBGC final rule (mid-2006) Regulatory liability formula Employer liability (full plan) x percentage reduction in active participants May overstate or understate theoretically correct amount Set stage for enhanced PBGC enforcement 23 24

5 4062(e) The Basics Trigger Must have cessation Cessation must be of operations Operations must be at a facility Facility must be in any location Result of cessation must be > 20% of active participants separated from employment 4062(e) The Basics (Cont.) Liability amount Step 1: calculate employer liability (full plan) Use conservative PBGC assumptions Determine immediately after cessation (include shutdown benefits) Step 2: multiply by active participant percentage reduction Example Employer liability (full plan) = $800M Active participant percentage reduction = 25% 4062(e) liability amount = $200M (e) The Basics (Cont.) Form of satisfaction of liability Escrow liability amount with PBGC (default option) PBGC may instead require posting of bond for up to 150% of liability amount If plan terminates (underfunded) within 5 years: Escrowed amount added to plan assets, or Amount realized on bond added to plan assets If plan remains ongoing at end of 5-year period Escrow (without interest!) returned to employer, or Bond canceled 27 Unresolved Interpretive Issues Little/no PBGC guidance on interpretation of ERISA Section 4062(e) Open issues re whether event occurs Open issues re amount of liability No case law guidance because essentially unenforceable before regulatory fix Note: 4062(e) liability has 5-year shelf life Ambiguity leads to more leverage for employer in negotiations with PBGC Simple open & shut cases maximize PBGC leverage 28 Unresolved Interpretive Issues (Cont.) Applicability to going concern asset sales? Operations cease with seller Employees separated from employment with seller PBGC may claim 4062(e) liability arises, at least where seller retains pension liabilities However: PBGC Opinion Letters (e.g., 76-52, , 78-29, and 82-29) found no 4062(e) liability No regulatory or other guidance to contrary Unresolved Interpretive Issues (Cont.) Applicability to stock sales? Title IV employer definition: entire controlled group Operations cease with entire controlled group Employees separated from employment with entire controlled group Facility in any location Two or more buildings across street or across town? Geographically dispersed buildings conducting integrated operations? Two or more facilities in a single building? 29 30

6 Unresolved Interpretive Issues (Cont.) Operations Cessation of one set of operations with other operations at same facility continuing? What constitutes discrete set of operations? Cessation What if portion(s) of operations continue indefinitely? How complete? Work in progress? How permanent? Timing Cessations that occur in stages? Cessations that occur gradually over period of time? Unresolved Interpretive Issues (Cont.) Result of Can cessation at Facility A result in separation of employee at Facility B? Employees who voluntarily quit or retire in anticipation of cessation? Normal attrition? Separated from employment Normal attrition? Temporary layoffs that last a long time? Layoffs with long-term recall rights? Reporting of 4062(e) Events Reporting required (4063(a)) within 60 days Unclear when 60-day period starts (e.g., date of cessation, date 20% threshold crossed) No exemptions based on size, funding, etc. 60-day 4063(a) requirement independent of 30-day reportable event requirement Any reportable event waiver/extension is inapplicable to 4063(a) Reportable event notice may be due before or after 4063(a) notice is due PBGC Enforcement/Negotiations Statutory liability Not self-executing Serves as starting point for negotiations Key PBGC focus Exposure Current underfunding, expected recoveries Projected 5-year underfunding, expected recoveries Risk Controlled group financial distress Historical and projected financial statements EBITDA, free cash flow, projected contributions Joint and several controlled group liability (including foreign members) PBGC Enforcement/Negotiations (Cont.) PBGC can be creative in structuring settlement Unlike typical Federal agency Like private corporation vis-à-vis settlement flexibility Early Warning Program deals are analogous (same goal: protect plan in case it terminates) PBGC Enforcement/Negotiations (Cont.) Negotiating leverage for PBGC Ability to file suit to enforce 4062(e) liability Effect filing of lawsuit, or even mere assertion of liability in a letter, could have on: Covenants Notice and/or default triggers SEC disclosures Credit ratings Current or prospective lenders/investors 35 36

7 PBGC Enforcement/Negotiations (Cont.) Negotiating leverage for employer Little/no risk of plan termination within 5 years Downsizing will make employer stronger 4062(e) liability would increase failure risk Preserve jobs Political considerations Unresolved interpretive issues PBGC Enforcement/Negotiations (Cont.) Settlement possibilities Additional contributions (with credit balance restrictions) now and/or later Waiver of existing credit balance Guarantee by foreign controlled group member Restrictions on sale of subsidiaries outside CG Restrictions on movement of value within CG PBGC Enforcement/Negotiations (Cont.) Settlement possibilities (Cont.) Security for plan May cover future employer liability and/or future contribution obligations Need not be 1st lien (depends on value of 2 nd /3 rd ) Could be letter of credit or escrow with interest Controlled group stock generally not helpful to PBGC (given joint/several liability) But stock of foreign CG members may be helpful to PBGC (legal/jurisdiction/collection problems) PBGC Enforcement/Negotiations (Cont.) Effect of 5-Year 4062(e) window Employer generally wants to limit deal to 5-year window PBGC likely to push for protection beyond 5-year window Extra contributions/credit balance waivers naturally extend beyond window Employer willingness to extend beyond 5-year window can buy less onerous deal Ambiguity and potential for lengthy litigation: employer leverage (5-year shelf life) Distress Terminations Distress Terminations If plan is underfunded, only way to terminate voluntarily is through distress termination Each controlled group member must meet at least one test: Distress Test 1: Liquidation in bankruptcy/insolvency Distress Test 2: Reorganization in bankruptcy Distress Test 3: Inability to continue in business Distress Test 4: Unreasonably burdensome pension costs Each CG member may meet different test Distress terminations usually arise in bankruptcy setting (liquidation/reorganization) Collective Bargaining Agreement can block distress termination (subject to 1113 motion to reject CBA) 41 42

8 Distress Terminations (Cont.) Liquidation distress test (Test 1): automatic Reorganization distress test (Test 2): often contested Show meaningful sacrifices in all areas Show plan unaffordable even w/freeze & waiver If lender/investor insists on plan termination, show: Lender/investor has sound financial basis Unable to find lender/investor not insisting on termination Multiple plans: PBGC argues for plan-by-plan determination Watch out for any non-debtor controlled group members (each one must also meet distress!) Watch out for follow-on replacement plans (major PBGC concerns!) Distress Terminations (Cont.) Distress permitted outside bankruptcy under Tests 3 and 4 PBGC makes determination Can be very useful for small to mid-size employer where bankruptcy otherwise unnecessary, too costly Business continuation test (Test 3) analogous to reorganization test (Test 2) Test 4 very rarely used to date Procedures Various notices and filings Restrictions on lump sums and annuity purchases Cutbacks of benefits to estimated Title IV levels No specific deadline for PBGC to decide distress Distress Terminations (Cont.) In (common) bankruptcy reorganization context, PBGC will Appear in court Submit brief stating its view of Test 2, and Support, oppose, or take no position on distress motion Note PPA s deemed termination date of bankruptcy petition date For certain purposes relating to Title IV benefit amounts Not for employer liability PBGC-Initiated Terminations PBGC-Initiated Terminations PBGC-Initiated Terminations (Cont.) PBGC-initiated termination ( involuntary termination ) May be used/threatened to block corporate transaction: Breakup of controlled group (e.g., sale of crown jewel subsidiary) Transfer of plan to weaker controlled group Movement of value between/among CG members Highly leveraged transaction May be used (in some circumstances) to cut off increased PBGC exposure (guaranteed benefits) PBGC-initiated termination (cont.) Possible triggers include reportable event notices and Early Warning Program monitoring Less controversial uses: Abandoned plans Shortcut in lieu of distress process May be (and often is) done by agreement with plan administrator 47 48

9 PBGC-Initiated Terminations (Cont.) Criteria for PBGC-initiated termination Minimum funding standard not met (missed annual catchup, not missed quarterlies) Plan will be unable to pay benefits when due (mandatory termination if currently unable) Substantial owner distribution (rare) Long-run loss : the possible long run loss of the [PBGC] with respect to the plan may reasonably be expected to increase unreasonably if the plan is not terminated Long-run loss analysis Likelihood of future termination if PBGC does not act now Expected increase in PBGC loss PBGC-Initiated Terminations (Cont.) PBGC can quickly set termination date by publishing notice Locks in immediate termination date, related liability But subject to later court approval or agreement with plan administrator Termination date May be retroactive But not before participant expectations extinguished PBGC may seek later date for financial reasons Subject to PPA s deemed termination date of bankruptcy petition date For certain purposes relating to Title IV benefits Not for employer liability CBA cannot block PBGC-initiated termination Bankruptcy Claims/Disputes Bankruptcy Claims/Disputes Key PBGC concerns Adequate information in disclosure statement Funding of plan during bankruptcy Future of plan Ongoing Standard termination Distress or PBGC-initiated termination Treatment of PBGC claims PBGC bankruptcy claims Many priority arguments raised by PBGC Most arguments rejected by courts Usually resolved with global PBGC settlement Bankruptcy Claims/Disputes (Cont.) Bankruptcy Claims/Disputes (Cont.) Potential PBGC post-bankruptcy liability New exit fee for PBGC-initiated terminations and nonliquidation distress terminations $1,250 per participant, per year, for 3 years For employers in bankruptcy reorganization, 3-year period starts post-confirmation Oneida decision (survives reorganization intact) If future case law follows Oneida, may lead to more asset sales followed by liquidations Guarantor claims Unpaid premiums General unsecured if plan year starts pre-petition Check PBGC calculation methodology! Unfunded Benefit Liabilities Contingent on plan termination Often filed as unliquidated claim Disputes re amount: based on PBGC valuation regulation assumptions (controversial) Disputes re priority: PBGC claims tax status (30% of aggregate positive CG net worth), but courts reject 53 54

10 Bankruptcy Claims/Disputes (Cont.) Bankruptcy Claims/Disputes (Cont.) Successor trustee claims Unpaid contributions Contingent on plan termination and PBGC trusteeship Tax status arguments ($1M+) rejected by courts Post-petition administrative priority Limited (at most) to normal cost Reduce for decline in employment levels Limited priority for 180-day pre-petition period Rest is general unsecured Fiduciary breach (not common) Resolving claims with PBGC Settlement common Actuary to actuary (plan/pbgc): agree on numbers Attorney to attorney (debtor/pbgc): resolve priority and (for UBL claim) amount disputes End result: May be single sum If PBGC sees good test case, settlement may not happen Questions? Harold J. Ashner Keightley & Ashner LLP One Metro Center th Street, NW, Suite 700 Washington, DC (202)