Underfunded defined benefit pension plans raise significant liability risks for businesses that sponsor or who belong to control or affiliated service groups that include a business that sponsors an underfunded defined benefit plan as well as for businesses contemplating lending to, investing in, or purchasing stock or assets of these businesses.

Radical drops in plan asset values attendant to the economic downturn and Congress’ amendment of federal funding rules to accelerate the funding of defined benefit plans have triggered a defined benefit plan underfunding epidemic.  Indeed, challenges of meeting their defined benefit plan funding obligations increasingly are resulting in an unprecedented number of distress terminations and forcing many businesses to restructure or even file bankruptcy.  Currently, recently released Internal Revenue Service (IRS) and Pension Benefit Guarantee Corporation (PBGC) guidance makes it necessary or desirable that sponsoring businesses or fiduciaries of defined benefit plans take action before year end or shortly thereafter  to meet critical compliance deadlines.  

Complex New Rules Increase Underfunding Risks & Obligations

The new rules seek to implement Congressional amendments to the pension funding requirements intended to short up the security of the U.S. pension system and the pension guarantee insurance program run by the PBGC under the Pension Protection Act of 2006, as amended (PPA). Under the PPA, single-employer plans that are between 60 and 80 percent funded may not pay lump sums or other accelerated distribution forms with values in excess of: (1) 50 percent of the amount that would be paid absent the restriction or, if smaller (2) the present value of PBGC’s maximum guarantee computed under PBGC guidance. The PPA also requires certain funding certifications, notices and other requirements.

Enacted while the economy was strong, the burden of meeting the added pension funding demands resulting from the decreased earnings and acceleration of benefits associated with the economic downturn combined with the new rules’ expedited funding requirements are overwhelming many plan sponsors.  With the economic downturn, however, the prospects for Congressional or other regulatory relief are not good.  The PBGC is straining to keep up.  The 2009 Annual Management Report submitted to Congress in November shows the PBCG ended fiscal year 2009 with an overall deficit of $22 billion, compared with the $11.2 billion deficit for fiscal year 2008.    The deficit in the PBGC’s insurance program for single-employer pension plans widened to $21.1 billion for the year, $10.4 billion more than the prior-year’s $10.7 billion shortfall. The separate insurance program for multiemployer pension plans posted a deficit of $869 million, exceeding last year’s $473 million shortfall by $396 million.   Accordingly, the PBGC and the IRS have continued to roll out a series of complex new regulations to implement the new rules.

New Defined Benefit Plan Regulations Complex Maze of Burdensome Requirements

Single employer pension plans generally must begin complying with final funding regulations published by the IRS in October during 2010; however, many plan sponsors are likely to find it desirable to adopt certain amendments or take other steps during 2009.  Under these rules, underfunded plan benefit accruals and certain amendments will be curtailed and certain notifications, certifications and other actions required. Timely compliance with these mandates can help to mitigate some of the otherwise draconian liability associated with pension plan underfunding while helping to mitigate the continuing growth of these liabilities in an already underfunded pension plan.

Under section 101(f) of ERISA and guidance issued by the Department of Labor, starting with plan years beginning on or after January 1, 2008, single-employer plans with liabilities that exceed plan assets by $50 million or more must provide PBGC with a copy of the Annual Funding Notice by the Annual Funding Notice due date.  Single-employer plans with liabilities that exceed plan assets by less than $50 million must provide PBGC with a copy of the Annual Funding Notice within 30 days of receiving a written request from PBGC.  See Department of Labor Field Assistance Bulletin No. 2009-01 (Feb. 10, 2009), here.

In addition, defined benefit pension plans, their sponsors and fiduciaries also must contend with a host of complex new PBGC insurance, premium, certification and reporting and other requirements and guidance. For instance:

On March 16, 2009, PBGC published a Final Rule that amends its regulation on Annual Financial and Actuarial Information Reporting (29 CFR part 4010).  The final rule implements Pension Protection Act of 2006 changes to ERISA section 4010 and makes other modifications and clarifications to the reporting requirements.  PBGC expects to update the e-4010 filing application and related materials (e.g., filing instructions) within a few days.  Until the application is updated, filers should not attempt to enter data for post-PPA filing; such data will be lost when the application is updated.  However, first-time filers may log on to the application to set up an account and familiarize themselves with the application, through here. The first filings under the new rules were due April 15, 2009.

On November 23, 2009, PBGC published:

• A Request For Public Comment on purchases of irrevocable commitments to provide plan benefits before initiating a standard termination under ERISA section 4041. Comments are due by January 22, 2010;
• A Proposed Rule that would conform PBGC’s reportable events regulation under section 4043 of ERISA and several other PBGC regulations to statutory and regulatory changes resulting from the Pension Protection Act of 2006. The proposed rule also would eliminate most of the automatic waivers and filing extensions, add two new reportable events, and make some other changes and clarifications. Comments on the proposed rule are due by January 22, 2010;
• Asked the Office of Management and Budget a request for approval of changes to the reporting requirements under ERISA Part 4043; 
• Issued Technical Update 09-4, which extends guidance provided in Technical Update 09-1 and Technical Update 09-3 for 2010 plan years. PBGC expects to supersede the guidance in Technical Update 09-4 with a final rule amending the reportable events regulation sometime during 2010.

On December 1, 2009, PBGC:

• Published a Final Rule amending its valuation regulation by substituting a new table for selecting a retirement rate category. The new table applies to any plan being terminated either in a distress termination or involuntarily by the PBGC with a valuation date falling in 2010.
• Published a Final Rule removing the maximum guarantee table from its benefit payment regulation and telling the public where to find maximum guaranteeable benefits on its Web site. The maximum guaranteeable monthly benefit for 2010 is $4,500.00 (unchanged from 2009).
• Published a Notice stating that the per-participant flat-rate premium for single-employer plans for plan year 2010 is $35.00 (up from $34.00 for Plan Year 2009) and $9.00 (unchanged from Plan Year 2009) for multiemployer plans. By law, the premium rates are adjusted for inflation each year based on changes in the national average wage index. The notice states that no further flat premium rate notices will be published in the Federal Register and tells the public where to find flat premium rates on its Web site.  

On December 4, 2009, PBGC  submitted draft information requirements to the Office of Management and Budget in connection with PBGC’s pending Proposed Rule on Reportable Events are now available on PBGC’s Web site. PBGC has posted the information that would be required (under the proposed rule) to be reported on Form 10, Form 10-A, and Form 200 and the corresponding draft instructions.

Previously, during 2009, the PBGC also:

• Announced an increase in the per-participant flat-rate premium for plan year 2010 to $35.00 for single-employer plans (up from $34.00 for plan year 2009) and to $9.00 for multiemployer plans (unchanged from plan year 2009).
• Published certain relief for certain small plans from part 4043 reporting requirements if a required quarterly contribution for the 2009 plan year is not timely made to a plan, and the failure to make the contribution is not motivated by financial inability under Technical Update 09-3.. The Technical Update waives reporting in such cases if the plan has fewer than 25 participants and provides a simplified reporting requirement if the plan has at least 25 but fewer than 100 participants.
• Issued Technical Update 09-2, which allows 4010 filers to determine benefit liabilities for 4010 reporting purposes using the form of payment assumption described in 29 CFR § 4044.51 (generally an annuity form of payment).  This is an alternative to the form-of-payment-assumption under § 4010.8(d)(2)(i) of PBGC’s Final Regulation On 4010 Reporting, which requires filers to use the form-of-payment assumption for determining the minimum required contribution.
• Updated the e-4010 filing application and related materials have been updated to reflect changes in the March 16, 2009 Final Rule. The application is now available to accept post-Pension Protection Act of 2006 filings.

Free December 10 Study Group Teleconference Examines New Requirements

Persons concerned about these issues may wish to consider participating in a free one hour “Study Group” conference call that the American Bar Association RPTE Employee Benefits & Other Compensation Group (Group) plans to host December 10, 2009, at 1 PM Eastern, Noon Central, 11 AM Mountain and 10 AM Pacific.  The Study Group will explore a number of current/breaking issues of interest to practitioners and their clients dealing with single-employer defined benefit plans. Key topics will include:

• Recent Regulatory Guidance on Funding and Benefit Restrictions
• Mandatory and Optional Amendments to be Adopted by 2009 Plan Year End
• PBGC Proposal to Eliminate Most Reporting Waivers and Extensions (and PBGC Interim Guidance)
• Pre-Standard Termination Irrevocable Commitment Purchases (PBGC Comment Request)
• Update on PBGC Pursuit of “Downsizing” Liability (ERISA Section 4062(e)).

The conference call will be moderated by:

• Group Chair, Cynthia Marcotte Stamer, Curran Tomko Tarski LLP, Dallas, TX;
• Group’s Plan Termination Committee Chair, Harold Ashner, Keightley & Ashner LLP, Washington, DC, and
• Group’s Plan Termination Committee Vice-Chair, Henry Talavera, Hunton & Williams LLP, Dallas, TX.

Interested persons can participate in the Study Group by dialing 1-800-504-8071 and entering the passcode 9885683.  To assist the Group in anticipating the number of participants, the Group encourages those planning to participate to e-mail Group Chair Cynthia Marcotte Stamer at here to RSVP.

Curran Tomko Tarski LLP Attorneys Can Help

If your business needs assistance with distressed or bankruptcy company, defined benefit plan funding or other employee benefit, human resources, corporate ethics, and compliance practices, or other related concerns or in responding to restructuring and bankruptcy, employment or employee benefits related charges, audits, investigations or suits, please contact Curran Tomko Tarski LLP Corporate Restructuring & Bankruptcy Chair G. Michael Curran at mcurran@cttlegal.com, (214) 270-1402, Employment Practice Chair Cynthia Marcotte Stamer at cstamer@cttlegal.com, (214) 270-2402, or your favorite Curran Tomko Tarski, LLP attorney.

Mr. Curran provides legal counsel on all aspects of out-of-court reorganizations and workouts, as well as bankruptcy proceedings. He has represented debtors, debtors’ and creditors’ committees, and third party purchasers in a variety of complex factual and legal scenarios, and has also acted as special counsel.  His experience includes substantial experience addressing defined benefit and other employee benefit and human resources issues arising in connection with restructuring, bankruptcy and other significant business events and transactions.

Ms. Stamer is experienced with assisting employers, fiduciaries, bankruptcy trustees, investors, purchasers and others about defined benefit plan and other employee benefit, labor and employment, compensation and other related concerns involved with distressed businesses or benefit plans, bankruptcy and restructuring transactions and other corporate or plan related events. Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization and Chair of the American Bar Association RPTE Employee Benefits & Other Compensation Group and a Joint Committee on Employee Benefit Council Member, Ms. Stamer has advised and represented these and other business clients on employee benefit, labor and employment, compensation, employee benefit and other personnel and staffing matters for more than 20 years.  Her experience includes significant experience representing and advising employee benefit plan sponsors,  fiduciaries, and service providers and their affiliates; investors, creditors, bankruptcy trustees, and others about employee benefit, labor and employment and related services and compensation concerns affecting transactions involving bankrupt or distressed corporations.  Ms. Stamer also speaks and writes extensively on these and other related matters.  Among her many publications is her November, 2009 publication, “Calculation of Minimum Contributions Required For Single Employer Pension Plans: The Final Rules for The Measurement of Assets and Liabilities For Pension Funding Purposes under Final Treasury Regulation Section 1.430(d)-1.” Persons interested in a copy of this publication may contact Ms. Stamer.  See here for additional information about Ms. Stamer and her experience, here to review other recent updates, here  for other articles and publications, and review selected training and presentations here or contact Ms. Stamer directly.

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©2009 Cynthia Marcotte Stamer. All rights reserved.