Pensions and Corporate Insolvency A Practitioner's Guide

Author: Rosalind Connor; Nick Moser; Gary Squires
Publisher: LexisNexis U.K.
ISBN: 9781846615559
Published In: February 2013
Format: Hardback
Jurisdiction: U.K. ? Disclaimer:
Countri(es) stated herein are used as reference only

Out of stock

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The ongoing arguments on the priority of pensions liabilities in an administration or a liquidation, in the case of Bloom v The Pensions Regulator, reaches the Supreme Court in 2013. The case focuses on the Regulator's rights where it issues its notice after the commencement of the administration of the recipient. It was held by the High Court and the Court of Appeal to rank as administration expenses, ahead of unsecured creditors and the administrator's own fees. Many see this as an anomaly, and are waiting for the Supreme Court or Parliament to adjust the legal position again.

At the same time, the Regulator continues to assess its ability to impose its powers in the UK and overseas. Following the success with Sea Containers Limited, where the financial support direction gave rise to an agreement which was upheld by the Delaware bankruptcy courts, the Regulator has had much more limited success pursuing the Nortel Networks group overseas, meeting resistance from the courts both in the US and Canada. At the same time, its contribution notice in relation to the Bonas Group Pension Scheme was settled at a much reduced figure out of court, following some significant criticism of its approach in Michel van der Wiele v the Pensions Regulator 2011. All of this happens in the context of the English common law's position on the enforcement of foreign judgments having been further refined by the Supreme Court's October 2012 decision in Rubin v Eurofinance.

Introduction to Insolvency Law

Introduction
Summary of main insolvency procedures
Directors' duties and liabilities
Disqualification orders
Practice

Introduction to Pension Schemes and Pensions Law

Introduction
The Pensions Regulator
The Pension Protection Fund

Preparing for Insolvency

Involving the trustees
Trustee powers
Involving the Regulator
Involving the PPF
Continuing the business

The Advisers and their Roles

The advisers
The advised
Shared advisers and conflicts

Financial Assessments

Introduction
What is the employer covenant and why is it important?
Scheme recourse to employers, guarantees and structural priority
The benefits of independent covenant review
Covenant monitoring, KPIs and triggers
What information is required by trustees, employers and other parties in distressed situations?
Estimated outcome statements

Negotiation with the Parties: A Cacophony of Competing Interests

The trustees
The Regulator
The Pension Protection Fund
Relationship between the PPF and the Regulator
The employer
Other parties

Structure of the Insolvency

PPF Equity Requirement
Use of a rescue vehicle

The Assessment Period and PPF Entry

Notification obligations
The Funding Assessment
Preparing for entry in the PPF Assessment Period
Administering the scheme in the Assessment Period
PPF benefit levels
Coming out of the Assessment Period
The effect on the ongoing business

Restructuring without an Insolvency Process

Changing the Schedule of Contributions
Managing pension liabilities
Making changes: moral hazard, type A events and clearance

Proceeding without Clearance

Introduction
The pitfalls of a consensual approach
Clearance
Seeking advice to quantify regulatory risk
Lessons for Corporates from the Bonas CN
The Great Lakes Settlement-the Regulator achieves its goal without full recourse to moral hazard

International Issues

Exporting the Regulator's Powers
The theory
Approach of foreign courts
The practice
Examples

Rosalind Connor
Partner, Taylor Wessing LLP

Rosalind is a partner in the pensions group of Taylor Wessing, a leading international law firm. She has been working as a solicitor in the pensions field since 1998 and has a wide experience in the restructuring industry, including advising on the UK aspects of the restructuring of Dana Corporation, which including some innovative agreements with the Pensions Regulator. Other high profile work in the restructuring field includes Allders, Heath Lambert and Threshers.

Rosalind has a BA from Oxford University. She is a Fellow of the Pensions Management Institute and the secretary and vice-chair of its London region. She is also a member of and secretary to the Association of Pension Lawyers.

Nick Moser
Head of Restructuring & Corporate Recovery Group, Taylor Wessing LLP

Nick has advised on numerous restructurings involving pensions issues and has acted alongside the Pensions Regulator and Pensions Protection Fund (including in contentious matters). Nick advised the trustees of the Pittards Plc Pension Scheme in one of the earliest restructurings of its kind involving the PPF and routinely advises trustees and other interested parties in restructurings. Nick obtained his degree in jurisprudence from Lincoln College, Oxford in 1992, gained Solicitor Advocate status in 1998 and was "Insolvency Lawyer of the Year 2011" at the annual Insolvency & Rescue Awards.

Gary Squires
Chartered Accountant, Zolfo Cooper

Gary leads the Pensions Advisory Services team at Zolfo Cooper focused on advising pension scheme sponsors and trustees regarding employer covenant. He is a chartered accountant and licensed insolvency practitioner with over 20 years’ experience in a variety of corporate restructuring and advisory roles. Gary has brought this experience to bear in a broad range of major restructurings and leveraged buyouts including acting as joint administrator in the landmark Federal Mogul case. Since 2004 he has developed a particular niche in pensions regulatory proceedings, having acted in several cases including as advisor or expert witness in the Sea Containers FSD proceedings, the Bonas Contribution Notice and in the Nortel FSD proceedings.