The Private Equity Multiemployer Plan Problem ... Litigated

For years, private equity funds have managed to do a good job of using the controlled group rules of Internal Revenue Code Section 1563 to avoid some of the complexities associated with them. In fact, where a single private equity group maintains multiple funds, it has typically ensured not having to deal with these rules by divvying up the ownership of any company among its funds. However, the United States District Court for Massachusetts may have dealt a serious blow to these strategies.

Section 1563(a) contains the key language specific to controlled groups.

(a)Controlled group of corporations For purposes of this part, the term “controlled group of corporations” means any group of—

(1)Parent-subsidiary controlled group One or more chains of corporations connected through stock ownership with a common parent corporation if—

(A)

stock possessing at least 80 percent of the total combined voting power of all classes of stock entitled to vote or at least 80 percent of the total value of shares of all classes of stock of each of the corporations, except the common parent corporation, is owned (within the meaning of subsection (d)(1)) by one or more of the other corporations; and

(B)

the common parent corporation owns (within the meaning of subsection (d)(1)) stock possessing at least 80 percent of the total combined voting power of all classes of stock entitled to vote or at least 80 percent of the total value of shares of all classes of stock of at least one of the other corporations, excluding, in computing such voting power or value, stock owned directly by such other corporations.

Long time followers of this blog may recall that Scott Brass has been fodder for issues specific to private equity funds in the past. Once again, we deal with Sun Capital Partners, here known by Sun Capital Partners III, III QP, and IV.

Scott Brass, Inc. was a bankrupt company essentially held 30% by Sun Capital III and 70% by Sun Capital IV. After going bankrupt, Scott Brass stopped contributing to the New England Teamsters pension fund and was assessed a withdrawal liability by the multiemployer plan.

Under the Multiemployer Pension Plan Amendments Act of 1980 (MPPAA), members of a controlled group may be jointly and severably liable for withdrawal liability payments. But, Sun Capital argued that Scott Brass was neither part of a controlled group with parent Sun Capital III nor one with parent Sun Capital IV.

The courts thought differently. Relying on ERISA Section 4001, in which we see outlined the PBGC's definition of controlled group, the courts in this case looked at substance over form. That is, the courts saw that there is, in fact, a single entity that owns Scott Brass, Inc,, despite the complex legal structure that was developed surrounding the company. In fact, the Managing Partners of Sun Capital freely admitted that the structure that they created was largely to avoid the possibility of joint and several liability for withdrawal liability.

The court ruled in favor of the Teamsters Fund. While this will surely be appealed to the First Circuit and perhaps to the Supreme Court if the First Circuit fails to overturn, this case provides an avenue by which multiemployer plans may seek payments of withdrawal liability that have previously not been available to them.

Private equity funds in similar situation should consider these potential liabilities both in due diligence and in their ongoing risk management assessments.

The Pension Tale of the Cash and the Calendar

Once upon a time, there was a defined benefit (DB) pension plan. And, the plan was fully funded. And, that was good.

Well, at least, the plan's actuary told the plan sponsor that the plan was fully funded. And, then he said something else after that -- something about a HATFA basis. Oh, but it couldn't matter. That was clearly some foreign word. After all, the sponsor knew that the actuary was a really smart and he probably lapsed into foreign tongues once in a while. All that actuarial gibberish is pretty much a foreign language, anyway.

So, the plan sponsor, in this case represented by the Benefits Manager (Bob) and the Controller (Cliff), armed with the knowledge that its frozen plan was fully funded gleefully went off to see the CFO (Charlotte). It was time to tell her that the plan was fully funded and that the plan could be terminated.

Those of who work in the pension world know that this little story didn't end well. For those who don't work in that world, let's just say that being fully funded at the beginning of 2016 on a HATFA basis may mean that on a plan termination basis, assets may only be very roughly 2/3 of liabilities.

Our story goes on.

After understanding that they couldn't terminate the plan, the sponsor Craters R Yours (CRY), the world's largest manufacturer of inflatable moonwalks set about to continue managing their frozen DB plan. CRY had initially assumed that freezing the plan was an end to its pension worries, but it soon learned that was not the case.

They learned that frozen plan management can be a tale of volatility caused by cliffs and calendars. In year 1, we get funding relief. In year 2, it's gone and we revert to the old rules. We're 80.01% funded; all is well. We're 79.99% funded; life gets really tough. We make a contribution on March 31; a ratio gets better. We make it on April 2; there are things we have to tell the government.

Bob and Cliff learned that their jobs had become really difficult. Charlotte had roundly praised them when they found a new and inexpensive actuary, Numbers For Cheap. And, NFC always provided legally correct numbers. But, there was no strategy. NFC didn't tell Bob and Cliff that contributing $1,000,001 on March 31 was going to be much more valuable in the long run than contributing $999,999 on April 2. Because NFC really had no clue, CRY would up doing a lot of crying.

Bob and Cliff, and Charlotte, for that matter had been sure that when they froze CRY's pension plan that the actuarial work was a pure commodity. All the strategy was done. All that was left was to hire the cheapest actuary and get the plan terminated.

The moral of the story, of course, is that pension funding strategy doesn't end until the plan is gone. Until then, there is a difference, and you, as a plan sponsor need someone who can help you to find that optimal strategy. Let us help.

Is Your Executive Plan Top-Hat?

Most larger companies and some smaller ones provide many of their higher paid employees the opportunity to participate in a nonqualified retirement plan often referred to as a Supplemental Executive Retirement Plan or SERP. The rationale for having such a plan is spelled out in ERISA. The regulations specifically grants "top-hat" status to plans that are limited to a select group of management or highly compensated employees. The plan must also be unfunded (and for those people who say that lots of top-hat plans have assets set aside, that is informal funding in a rabbi trust or through insurance products or some other means).

Before going further, I'd be remiss if I did not mention that my motivation for posting this is a recent series on top-hat plan litigation in Mike Melbinger's blog.

So why should an employer or employee care if their plan is a top-hat plan or not? According to regulations under ERISA Section 104, top-hat plans are exempt from the participation, funding, vesting, and fiduciary rules under ERISA. As we shall see, this can be critically important, especially in the current statutory environment.

Backpedaling just a bit because this will help the less knowledgeable reader to understand why top-hat plans exist, let's consider what it could mean to be in a top-hat group. ERISA was enacted in 1974 to provide certain protections for employees in retirement and certain welfare benefit plans. When a plan is exempt from some of the key provisions of ERISA, it fails to provide those protections. So, being in a top-hat plan could alert a participant that he or she might not need those protections.

As some authors, mostly attorneys, have pointed out, the last year or two has seen more than the usual amount of litigation related to top-hat plans. In the typical situation, either an individual thinks that they were improperly excluded from a top-hat plan (in my completely non-legal view, this would be a tough claim to make) or because they were in a plan that was treated by their employer as being a top-hat plan, but they thought that it did not satisfy the criteria for being top-hat.

Depending on your viewpoint, the latter is either an easy claim or a difficult claim to make. Why is that? It's been more than 40 years since the passage of ERISA and we still don't have formal DOL guidance telling us what a top-hat group is. Some have argued that an individual may properly be in a top-hat group by being either management or highly compensated or both. Despite the current definition of highly compensated (Internal Revenue Code Section 414(q)) not existing until late 1986, some have argued that satisfying that criterion is sufficient. Many years ago, the DOL floated a concept that a person should be eligible for a top-hat group that a person would be eligible if their compensation was at least two times (three times in a separate informally floated concept) the Social Security Wage Base. And, finally, there is the concept that a person may rightfully be in a top-hat group if by the nature of their position, they have the ability to influence the design and amount of their compensation and benefits package.

So, knowing that we currently don't know what a top-hat group actually is, why do we care?

Suppose your company sponsors what it believes to be a top-hat plan and it turns out that it's not top-hat. Then, it's going to be subject to some fairly onerous provisions that could create massive current costs in some cases and unsolvable compliance issues in others.

Consider the following scenario.

Suppose you have a DB SERP with 20 participants. Further suppose that for whatever reason, this plan is found to not be a top-hat plan. Assuming that the company is large enough, then the plan will fail the minimum participation rules and it will necessarily (unless the company has only highly compensated employees) fail the minimum coverage tests. Full vesting must occur generally within 5 years of entry and that entry must occur not later than age 21 with 1 year of service. The plan must be funded according to ERISA's minimum funding rules. And, those plan assets must be invested according to ERISA's fiduciary standards. But, the plan will still not be a qualified plan as it doesn't meet all of the Internal Revenue Code's standards under Section 401(a).

If the plan is not qualified, it must be a nonqualified plan of deferred compensation. That makes the plan subject to Code Section 409A. So, let's throw in one more wrinkle. Let's suppose the company also sponsors a qualified DB plan and let's suppose that the qualified plan is less than 80% funded. Now, you are between a rock and a hard place. Setting aside assets (funding) for the nonqualified plan will violate Code Section 409A which will subject participants to a very large unplanned additional tax liability. (By the way, those participant will likely have to find a way to pay those taxes perhaps without having access to the deferred compensation assets in order to pay them.) Not funding the SERP will cause the plan to fail to meet minimum funding standards which will result in excise taxes under IRC 4971.

Ouch!

What should an employer do?

I've been told by more than one attorney that it is unlikely that you can get a formal legal opinion that your top-hat group is, in fact, a bona fide top hat group.

If you can't get a formal legal opinion, perhaps the best way to get comfort is to get an outsider with expertise in this area to assist with an independent analysis.

Looking at a history of case law and DOL opinion on the topic, one might consider these elements:

• The percentage of the workforce in the top-hat group
• The relative pay of the top-hat group as compared to the pay of those people not in the top-hat group
• Whether the top-hat group was selected by the Board as compared to being, for example, any employee with the title Vice President or higher
• Whether individuals in the top-hat group, especially those among the lower-paid in the group, have significant management responsibilities
• Whether individuals in the group need the protection of ERISA

Nobody really knows. But, having an independent analysis might show that an employer is acting in good faith in determining the group. Given the downside of getting it wrong, it may just be worth it to find out.

Finally, I want to reiterate that I am not an attorney and I have no qualifications to provide legal advice. As such, nothing in this post or anything else that I write should be construed as legal advice or as the practice of law.

Suppose You Didn't Have to Ask All the Right Pension Questions

Think about it. Oftentimes, your consulting services are only as good as the questions you knew to ask. Suppose you didn't have to ask them.

I think back to some of my earlier days as a consultant. Leaving a meeting, one of my mentors said to me that I had answered all of the client's questions that they needed to have answered, but didn't know it. In other words, I delivered optimal consulting to my client.

In the actuarial consulting world, what plan sponsors are frequently encountering is something short of optimal consulting. We can refer to it as suboptimal consulting.

I'm not going to give away exactly what goes into suboptimal consulting. What I will do though is to tell you a little bit about it, how damaging it might be to not avoid it, that it can be identified, and what a better solution looks like.

To paraphrase the old TV show "Dragnet" -- the tales of suboptimal consulting you are about to encounter are true; the names have been changed to protect the innocent. And, by the way, the innocent are the clients. They have businesses to run. With the exception of those big enough to have full-time, in-house pension consultants, they can't be expected to know all this stuff on their own.

Surprisingly enough, National Widget Company (NWC) is in the business of manufacturing and distributing widgets. NWC currently sponsors two frozen pension plans. Their actuarial firm, Too Big For the Mid-Market (TBFM) has assigned a litany of what it views internally as mediocre consultants to NWC for the last 15 years or so. Here is some of what we know about this relationship.

• There have actually been six separate Enrolled Actuaries from TBFM assigned to NWC over the last 15 years. Only one of the six has ever met NWC management. None has worried about learning NWC's corporate goals, needs, or points of pain. All simply assumed that NWC was pretty much the same as the rest of TBFM's clients.
• The two NWC pension plans, in total, have about $100 million in plan assets.
• NWC pays TBFM about $250 thousand per year in actuarial fees.
• NWC has been laying out an average of slightly more than $100 thousand in cash every year (either to the plan or on behalf of the plan) that it didn't need to and for which there is no real benefit to the company or to plan participants. This is wasted money that could have been saved.

How do I know all of this? Suboptimal actuarial consulting can be identified. Deficiencies can be pointed out. Solutions can be found going forward. No, we can't turn back time, but we could ensure that NWC doesn't make the same mistakes over and over again. 

That NWC sponsors two frozen pension plans implies to me that they would like to terminate them. In other words, they'd like to get out of the pension business. Currently, however, there is no path to those plan terminations. They live in a world of hope and despair. That is, their strategy is that they hope that everything will go right and that these pension plans go away yet they are faced with the despair of knowing that this is not very likely to happen. 

Suppose NWC had a real strategy. Suppose that strategy included solutions with more upside potential and with less downside risk. Suppose every dollar that NWC spent on the plan was optimal. Suppose someone answered NWC's questions that their lack of pension expertise made them unequipped to ask. 

Are you responsible for a pension plan? Do you know if you are getting optimal actuarial consulting? Wouldn't you like to know? Wouldn't you like to get that optimal consulting?

Compensation Risk Assessments -- What is Compensation Risk?

Prior to Dodd-Frank, the SEC published a final rule on Compensation Risk Assessments. Among other things, this rule requires that registrants make new or revised disclosures (in their proxies) about compensation policies and practices that present material risks to the company. To date, most companies have either ignored this requirement or given it short shrift. Perhaps that is a natural response to neither internal nor external compensation practitioners customarily dealing with risk and risk assessments.

Unlike many other proxy requirement related to compensation, this one in Item 402(s) is not restricted to executive compensation. Rule 402(s) asks companies to look at all of their compensation practices to determine what material risks are presented to the company. As a shareholder, I have yet to see a proxy that complies with the spirit of the rule.

What is compensation risk? Sadly, nobody seems to know. But, since I am writing here, I will take my shot at it. A compensation risk exists when a company's programs and policies are such that compensation could call fall significantly out of line with the company's earnings or with the company's ability to pay compensation as suggested by those policies and programs. This could occur when incentive payouts are keyed to too many subjective or non-financial measures. This could occur when a company has results that are particularly volatile year after year and as a result, long-term incentive payouts are more reflective of past years' performance than that in the most recent year.

Unfortunately, that seems to happen fairly frequently. And, as a result, I think that companies should take this compensation risk assessment more seriously. A benefit of doing so would be that their compensation programs would be less likely to present material risks.

You knew this would be the case, but I have some thoughts on the matter. If implemented, my thoughts might help companies to decrease these risks. They're not perfect -- nothing is -- but, here are a few.

Weight/Age the Years in Long-Term Incentive Plans

In a typical long-term incentive plan, an executive is rewarded for performance over an extended period of time (three years is not atypical). So, to use Total Shareholder Return (TSR) as an example, an executive would be rewarded at (or close to) the end of 2015 for his or her company's TSR over the period from the beginning of 2013 to the end of 2015. That's fine, but frankly, by the end of 2015, who cares all that much about 2013 TSR? Many shareholders will not have been shareholders in 2013.

Suppose instead, 2013 TSR was given a weighting of 0.5, 2014 TSR was given a weighting of 1.0, and 2015 TSR was given a weighting of 1.5. Rather than taking an arithmetical (or geometric) average, we would use a weighted (for aging) average.

It makes a lot of sense, doesn't it? It rewards long-term performance and it should, but it puts a bit more weight on what you've done for me lately. And, the great part about it is that each year over the 3-year period gets the same total weighting that it does right now, but it stops the executive team from resting on its laurels from a great 2013.

Discretionary Profit-Sharing Tied to Corporate Performance has Merit

Way back when, profit sharing plans were tied to profits. Gee, that sounds revolutionary doesn't it? If the company made a lot of money, it distributed more of it through its profit sharing plan. If it made less, it distributed less, and if there were no profits, it distributed none at all. Then, the good folks in the Treasury Department informed us that you don't need to have profits in order to share profits.

Say what?

Perhaps I am missing something here, but it makes sense to tie some elements of compensation, even at the lower-paid levels of the company, to corporate performance. It gives everyone a stake in how the company is doing. It's similar in the way that it motivates employees to an ESOP and according to the Employee Ownership Foundation, an ESOP advocacy group, companies that have ESOPs perform better. But, profit-sharing plans are, from my viewpoint, more compliance friendly and flexible than ESOPs.

Extend it to Unions

Labor unions will tell you that unionized companies perform better than those with non-union companies. They will also tell you that those with mandatory (for specific job categories) union membership perform better than those where it is optional or right to work.

Make the unions make the company perform better. Let the unions share in the success of the company, or the lack of success if that's the case. In other words, tie the rewards of the union and its members to the corporate performance. If the company does well, presumably the union had something to do with it. If the company does poorly, it's tough for the union to sit in the corner and say that the poor performance occurred despite the exemplary work of union employees.

Frankly, if the union says this is not the case, then all of its other words are just rhetoric. You're not a contributor to results in only the good years; you influence them in the bad years as well.

Measure the Risk

Companies and their shareholders really should understand their compensation risks. This may sound strange to some, but if the team currently considering these risks is not trained and educated in risk assessment, then find someone who is.

I'm biased in this regard, but since actuaries are trained in risk assessment and risk management and understand compensation and benefit programs, nobody may be better positioned to assist you with this. Ask an actuary.