Corporate Insolvency Pension Rights

The book offers an overview of the law of employment, pensions and corporate insolvency. It also focuses on the application of rules relating to corporate insolvency and how they affect employees and their pension rights, drawing together legislation, case law, analysis and comment.

In this first book to systematically evaluate the Employee Retirement Income Security Act (ERISA) of 1974, Gordon Clark argues that the law has failed to project workers' pension rights in situations where it was expected to be most effective: when corporations restructure in the face of enhanced market competition and technological change. Pensions and Corporate Restructuring in American Industry examines recent trends in corporate behavior and government policymaking in the United States and finds that the moral and ethical foundations of regulation are under attack. As a result of intense competitive pressures, Clark argues, some of America's major corporations have begun to flout government regulations designed to protect workers - and to treat the attendant law suits as just another cost of doing business. He finds evidence that some have even used restructuring as the means to avoid statutory obligations to workers. In a series of case studies - including the bankruptcy of the LTV Corporation, the radical restructuring of International Harvester Corporation into Navistar Corporation, and the sale and restructuring of Continental Can Corporation - Clark evaluates the effectiveness of current regulations and the role of government agencies such as the Internal Revenue Service and the Pension Benefit Guaranty Corporation. His analysis shows that many of the problems of enforcing ERISA can be traced to the act itself - the product of compromises among overlapping and competing interests that fatally limited its effectiveness. Clark concludes that any new regulatory framework must clarify the connections between restructuring and the welfare of workers, connections generally ignored inthe litigation that dominates corporate life today.

Benefits for retired employees are of particular interest to policymakers, who often are concerned with the income security of retirees, a large and fast-growing population. One aspect of this congressional concern is what happens when bankrupt employers are unable to provide promised pension and health benefits to their retired employees. This book explores the protections of benefits awarded retirees and future retirees of bankrupt private-sector employers under current law. Although there are many types of employee benefits, active employees, retirees, and the employers themselves are often especially concerned with postretirement pensions and health insurance benefits, usually the two largest components of these so-called legacy costs. This book also provides an overview of the status of employee wages and benefits, including retiree benefits, when an employer files in bankruptcy, and the amendments made to the U.S. Bankruptcy Code by the Bankruptcy Abuse Prevention and Consumer Protection Act; provides background on Delphi Corporation, relevant pension law, the role of the Pension Benefit Guaranty Corporation (PBGC), a description of major events at Delphi since 1999, and a listing of congressional hearings and legislation introduced related to the Delphi Corporation since the 111th Congress.

Corporate Insolvency: Pension Rights is the only book of its kind to successfully bridge the gap between the two distinct disciplines of pensions law and corporate insolvency law by drawing out the legal principles applicable where the different legal regimes interact.Providing in-depth analysis and drawing together legislation, case law, analysis and comment Corporate Insolvency: Pension Rights focuses on the application of the rules relating to corporate insolvency and how they impact on pensions. It explains the detailed elements of this specialist field of law and practice, providing a useful base on which to answer questions that are likely to arise.Coverage includes: the Supreme Court decision in Nortel and its impact on recovery under TPR's moral hazard powers; limits on the amount of contribution notices: Re Storm Funding; issues on s75 debts: MNRPF v Stena; cases on TPR's moral hazard powers; and surpluses on winding up: UC Rusal Alumina v Miller.Why you should read this bookIf you work as a pensions practitioner, corporate insolvency practitioner or accountant, you will find the up-to-date case law and practical analysis in Corporate Insolvency: Pension Rights an essential aid to your work.

This book analyses corporate rescue laws, processes and policies prescribed in corporate insolvency or bankruptcy laws, and employment laws of the UK and the US, with a particular focus on how extant employee rights are treated when a debtor employer initiates corporate insolvency proceedings. The commencement of formal insolvency proceedings by an employer affects employees’ rights and interests. Employment laws seek to protect employees’ rights and interests, while insolvency laws seek to promote corporate rescue, which may entail workforce changes. Consequently, this creates a tension between whose interest insolvency law should give primacy of protection. The book analyses how corporate rescue processes such as administration, pre-pack business sales, company voluntary arrangements, receivership and liquidation impact employee rights and protection during corporate rescue proceedings in both jurisdictions. It goes on to address how the federal system of government in the US and the diffusion of power between federal and state law jurisdictions impact a uniform code of employee protection during Chapter 11 bankruptcy reorganisation proceedings. The book considers how an interpretative approach to law (Dworkin’s Interpretative Theory of Law) may be used to balance both employee protection and corporate rescue laws during corporate insolvency in the UK and the US. Of interest to academics, students and employment law practitioners, this book examines the tension between corporate rescue laws and employment protection laws during corporate insolvency in the US and the UK and how this tension may be remedied or balanced.

Connected and Associated: Insolvency and Pensions Law discusses, in detail, the meaning and scope of the 'connected', 'associated' and 'control' tests used in the Insolvency Act 1986. These are in sections 249 and 435, and are incorporated by reference in pensions legislation. It also looks at the linked connected person test in The Administration (Restrictions on Disposal etc. to Connected Persons) Regulations 2021. Connected and Associated: Insolvency and Pensions Law will help you to: - Decide whether a person is connected or associated with another under the insolvency test for the purposes of preferences, transactions at an undervalue, or voting in creditor meetings - Decide whether there is a risk of falling within the potential target net for a contribution notice or financial support direction under the moral hazard powers of the Pensions Regulator in the Pensions Act 2004 - Check whether an investment by a pension scheme is within the limits on employer-related investment under the Pensions Act 1995 - Work out when a disposal by an administrator will be to a connected person - Work out who satisfies the independence test for an evaluator - Deal with connected person voting majorities in a creditor vote in a CVA and a Part A1 Moratorium - Understand the implications of the Administration (Restriction on Disposal etc. to Connected Persons) Regulations 2021 Written by David Pollard, one of the leading experts in this field, this is the only in-depth review of the complex test for connected or associated persons and, as such, is an essential title for insolvency and pension lawyers, litigators, pension trustees, employers, investors, lenders and their advisers. David Pollard is a leading and highly experienced lawyer in the insolvency and pensions fields and in related areas. He is a barrister, practising from Wilberforce Chambers in Lincoln's Inn, and previously practised for 37 years as a solicitor in London and Singapore. David's practice focuses on pensions law; insolvency law and; employment law (involving pensions). He was Chairman of the Association of Pension Lawyers (APL) from 2001 to 2003 and has been a vice chair of the Industrial Law Society.

In the UK, there have been some important developments in pensions and insolvency, notably the Supreme Court decision pending in Bloom v The Pensions Regulator, which focuses on the Regulator's rights where it issues its notice after the commencement of the administration of the recipient. Pensions and Corporate Insolvency sets out to explain the law and the practical issues that arise in the UK's pensions and insolvency. The book covers: the pensions law and institutions * powers of the regulators * the establishment of the PFF * the process for preparing for an insolvency, including financial assessment, negotiating with the parties involved, and competing interests * how to structure the insolvency in terms of moving the liabilities away from the operating company * how to handle the assessment and PFF entry * avoiding negotiation and the regulator risks * solvent restructuring * international issues relating to exporting the Regulator's powers. It starts with a brief summary of the issues, followed by details of the process to be followed, tactical and structuring issues relating to the various forms of insolvency, restructuring options, and the regulatory bodies. The effect on an international group is also covered.