ERISA and Bankruptcy A Comfortable Coexistence

ERISA and Bankruptcy A Comfortable Coexistence

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Three recent bankruptcy court decisions that involve PBGC-insured pension plans show that the Employee Retirement Income Security Act of 1974 (ERISA)2 and the Bankruptcy Code may comfortably coexist, and that where the Code does not clearly displace non-bankruptcy law, ERISA will govern.3 In Wilmington Trust v. WCI Steel (In re WCI Steel), 313 B.R. 414 (Bankr. N.D. Ohio 2004), appeal docketed No. 4:04 CV 01316 (N.D. Ohio July 13, 2004), Judge Marilyn Shea-Stonum of the Northern District of Ohio held that minimum funding contributions that are required by a collective bargaining agreement and ERISA are not voidable post-petition preferences. In In re Philip Services, 310 B.R. 802 (Bankr. S.D. Tex. 2004), Judge Wesley W. Steen of the Southern District of Texas held that a pension plan cannot be rejected as an executory contract and can be terminated only if ERISA's distress termination standards are met. Finally, in In re US Airways Group, 303 B.R. 784 (Bankr. E.D. Va. 2003), Judge Stephen S. Mitchell of the Eastern District of Virginia held that PBGC's claim for a terminated pension plan's shortfall should be allowed in the amount specified by ERISA and implementing regulations. Of the three, the US Airways decision is the most intriguing for its conclusions about choice-of-law principles where the Code is silent. It is probably also the most controversial, as two appeals courts have held that PBGC's claim should be allowed in a reduced amount under bankruptcy principles.

Defined Benefit Plans under ERISA

PBGC insures defined benefit plans, traditional pension plans that promise workers a prescribed benefit at retirement, usually based on a percentage of salary or a flat dollar amount times years of service. The employer bears the risk of investment loss, because once an employee completes the required service, the plan is obligated to pay his benefit regardless of the value of plan assets. By contrast, defined contribution plans (such as 401(k) plans) involve prescribed employer contributions to individual accounts and promise only the account balance or the annuity the employee can buy with the proceeds of the account balance. Thus, in defined contribution plans, the investment risk is on the employee. Compare 29 U.S.C. §1002(34) with §1002(35).

Under ERISA and the Internal Revenue Code (IRC), defined benefit plans are subject to minimum funding requirements. While there is no requirement that a defined benefit plan be fully funded, the employer must contribute annually in amounts determined by an enrolled actuary. 29 U.S.C. §1082; IRC §412. Installments are due 15 days after the close of each quarter of the plan's fiscal year, with a final payment due eight and a half months after the close of the plan year. 29 U.S.C. §1082(c)(10) and (e); IRC §412(c)(10) and (m). Under ERISA, defined benefit plans are also subject to mandatory PBGC insurance and must pay annual premiums. 29 U.S.C. §1306. The contributing sponsor and all members of its controlled group (organizations with at least 80 percent common ownership, such as parent and subsidiary corporations) are jointly and severally liable for these obligations. 29 U.S.C. §§1082(c)(11)(B), 1301(a)(14) and 1307(e)(2); IRC §414(b); Treas. Reg. §§1.414(b)-1 and 1.414(c)-1 et seq.

A chapter 11 debtor may terminate its pension plan in a distress termination. To approve a distress termination, the bankruptcy court must find that "unless the plan is terminated, [the debtor] will be unable to pay all its debts pursuant to a reorganization plan and will be unable to continue in business outside the chapter 11 reorganization process." 29 U.S.C. §1341(c)(2)(B)(ii). All controlled group members must meet one of ERISA's distress criteria (either the above "reorganization" test, a similar "business continuation" test that PBGC applies to companies not in bankruptcy, or liquidation) for the plan to terminate. 29 U.S.C. §1341(c)(2)(B). If a plan terminates, PBGC generally takes over as trustee and is responsible for paying benefits, subject to statutory limits. 29 U.S.C. §§1322, 1342(c) and (d), and 1344. In that event, the employer and all controlled group members are jointly and severally liable to PBGC for the shortfall between promised benefits and plan assets or unfunded benefit liabilities. 29 U.S.C. §1301(a)(18) and 1362(a) and (c); 29 CFR §4044.

Recent Cases

Three recent cases illustrate the relationship between ERISA and the Code at each of these stages of a plan's life cycle.

1. Pension contributions are not preferences. In Wilmington Trust, debtor WCI Steel maintained a defined benefit plan under a collective bargaining agreement with the United Steelworkers of America that required WCI to make annual contributions aggregating "not less than that required by the applicable provisions of federal law." 313 B.R. at 416. WCI's non-debtor parent, the Renco Group, was jointly and severally liable for these contributions as a controlled group member. WCI continued making quarterly contributions during its chapter 11 case over the objection of its secured noteholders. The noteholders filed an adversary proceeding under §549 of the Code, asserting that the contributions were post-petition preferences for the benefit of the pension plan and of Renco. WCI, Renco, the Steelworkers union, PBGC and the plan's trustee all asserted that the collective bargaining agreement required the contributions, that the agreement had not been modified or rejected under §1113 of the Code, and that under §1113(f) WCI was obliged to adhere to the agreement.4 Therefore, the contributions were not only "authorized" by Title 11 but required by it, and thus they were not avoidable under §549.5 PBGC pointed out that a contrary holding would conflict with ERISA, which prohibits a return of contributions unless they were made by mistake. See 29 U.S.C. §1103(c)(2).

Judge Shea-Stonum agreed that the contributions were required by the collective-bargaining agreement, and therefore were required by §1113(f). Under Sixth Circuit law, payments required by an unmodified and unrejected collective bargaining agreement must be paid during bankruptcy, whether or not they would qualify as administrative expenses.6 Consequently, Judge Shea-Stonum held that the contributions were not prohibited by Title 11 and were not avoidable under §549. Noting that the contributions had been made consistently both before and after the petition was filed, she concluded that WCI had not begun making them post-petition to protect Renco from its joint and several liability. She also noted (agreeing with PBGC) that they likely constituted ordinary course payments (for which no approval is required under §363(c)(1) of the Code), but she did not need to reach the issue in light of the disposition of the case under §1113(f). Wilmington Trust v. WCI Steel (In re WCI Steel), 313 B.R. at 417-18 and n.2.

While it may be unusual for a secured creditor to explicitly challenge payments of minimum funding contributions, it is not unusual for a debtor that intends to reorganize and to continue its pension plan to continue making such contributions during bankruptcy. First-day motions typically seek permission to continue to meet payroll and make a variety of fringe-benefit payments. Sometimes a first-day motion explicitly includes minimum funding contributions, and often such a motion includes them under a catchall provision. If the debtor can reorganize and can afford to continue funding its pension plan, PBGC's claim for unfunded benefit liabilities will remain contingent, and the plan will ride through the bankruptcy.7 Treating ERISA-mandated contributions as ordinary-course payments, at least in the case of an ongoing business that seeks to reorganize, eliminates any potential conflict between the Code and ERISA.

2. A pension plan is not an executory contract. Philip Services involved an attempt to terminate a pension plan while a reorganization plan was pending. Philip Services moved for a finding of distress and alternatively sought to reject the plan as an executory contract under §365 of the Code. After trial, Judge Steen found that Philip's financial projections would allow it to make the minimum funding contributions, even taking the mandatory debt repayments and reasonable capital expenses into account. Accordingly, he denied Philip's motion for a finding of distress. (Indeed, he noted that between the time of the bench ruling and the issuance of the opinion, Philip's reorganization plan had been confirmed and consummated with a provision for making the pension contributions. In re Philip Services, 310 B.R. at 803-04.) Judge Steen further concluded that ERISA's distress termination provisions occupied the field, and that a pension plan could not be rejected as if it were simply an executory contract (which a debtor can do at will so long as rejection is financially beneficial). He noted that ERISA provides that its methods of termination are "exclusive," that a pension plan may be terminated "only" pursuant to those methods and that other courts had so held in related contexts. 310 B.R. at 808-09, citing 29 U.S.C. §1341(a)(1) and In re Esco Mfg., 50 F.3d 315 (5th Cir. 1995).

There are several reported decisions finding distress, including a closely watched proceeding that involved the US Airways pilots' pension plan in 2003, In re US Airways Group, 296 B.R. 734 (Bankr. E.D. Va. 2003). Philip Services is one of the few close cases in which a finding of distress was denied. It demonstrates that ERISA and the Code coexist, and that ERISA prevails where it is more specific to the subject matter, consistent with the general rule on harmonizing federal statutes.8 In this case, since ERISA not only sets forth the criteria for a distress termination but expressly provides that the bankruptcy court will make the required findings, ERISA clearly controls the standards for the determination.

3. PBGC's claim for a pension plan's shortfall is determined under ERISA. The third decision in the US Airways claims litigation again resolved a potential conflict between the Code and ERISA in favor of ERISA. In that case, Judge Mitchell concluded that when the Code is silent on choice of law, the rule of decision is supplied by applicable non-bankruptcy law—in this case, ERISA.

When the US Airways pilots' pension plan was terminated, PBGC asserted a claim in excess of $2 billion for the plan's unfunded benefit liabilities. The claim represented the present value of all promised benefits under the plan, less the fair market value of the plan's assets. The value of benefits was based on the cost of a single-premium annuity that could be bought in the insurance marketplace to cover all plan benefits. That benchmark is prescribed by PBGC regulations, adopted under an express delegation in ERISA. 29 CFR §4044; see 29 U.S.C. §1301(a)(18). Under settled administrative law principles, the PBGC regulatory method, if not arbitrary and capricious, would establish the amount of the claim.9

Two appeals courts had concluded, however, that the Code and general bankruptcy "policies" overrode the application of ERISA to PBGC's claim. They held that rather than applying the PBGC regulatory standard, the bankruptcy court could appropriately discount the benefits at an earnings rate that a "prudent investor" might obtain on a hypothetical portfolio of stocks and bonds. According to those courts, §502(b) requires all claims to be brought to present value, and §1123(a)(4) calls for a uniform discounting, as it requires the same treatment of all claims in a class.10

In US Airways, Judge Mitchell disagreed, relying on the Supreme Court's decision in Raleigh v. Illinois Dep't. of Revenue, 530 U.S. 15 (2000). The Supreme Court held that if the taxpayer has the burden of proof in contesting the validity of an assessed tax under applicable state law, the burden does not shift when a bankruptcy is filed, and therefore continues to rest on the debtor-in-possession (DIP) or the trustee. Raleigh's more general teaching, however, is that the Code accepts non-bankruptcy law as the rule of decision on the validity of claims, except where the Code expressly displaces that law. As the Supreme Court stated, "[c]reditors' entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtor's obligation, subject to any qualifying or contrary provisions of the Bankruptcy Code." Raleigh, 530 U.S. at 20. In Judge Mitchell's view, the amount of a claim, as much as its validity, is a function of the non-bankruptcy law that gave rise to it, even though bankruptcy law (such as the Code's classification and equitable subordination provisions) governs the extent to which the claim will be paid. US Airways, 303 B.R. at 792-93.11

To be sure, bankruptcy courts are courts of equity. But as Judge Mitchell noted, equitable powers must be exercised within the contours of the Code. While §502(b) requires that claims be discounted to present value, in this case the statute already defined the claim at its present value and required the use of PBGC regulatory assumptions to arrive at the amount of that present value. Nor would allowing the claim in that amount offend the principle of equality among class members. So long as all claims in a class are allowed in the amounts that applicable non-bankruptcy law specifies, Judge Mitchell concluded, there is no disparate treatment. US Airways, 303 B.R. at 793-94.

Analysis of US Airways Decision

In my view, Judge Mitchell correctly identified and applied the bankruptcy choice-of-law principle. Erie famously holds that "there is no federal general common law," and federal common law is disfavored even in federal question cases.12 As the Supreme Court stated in Raleigh, "‘[t]he basic federal rule' in bankruptcy is that state law governs the substance of claims...." 530 U.S. at 20. Among Raleigh's antecedents is Butner v. United States,13 which held that bankruptcy law takes property rights as it finds them under state law. Those rights, Butner held, should not change due to the "happenstance of bankruptcy."14 While bankruptcy law governs distribution of a res, bankruptcy primarily establishes procedures for determining how claims will share in that distribution, not substantive rules for determining the amount and validity of those claims.15

A pre-Code case, Vanston Bondholders Protective Committee v. Green, 329 U.S. 156 (1946), does state that "allowance" of claims is a matter of equity. But allowance under the Bankruptcy Act referred to the ordering of claims for distribution, not to adjudication of the validity and amount of claims in the first instance. US Airways, 303 B.R. at 792-95, citing Raleigh, 530 U.S. at 20.16 While bankruptcy partakes of equity and generally favors equality among creditors, the Supreme Court has made it clear that the words of the statute govern, even though the result may seem inequitable or at odds with general bankruptcy policy considerations.17 Indeed, as a general matter, federal courts' equity powers are limited, and this is equally true in bankruptcy.18 Finally, Vanston is about allowance of post-petition interest, a subject that had a long history of judge-made law under the Bankruptcy Act to deal with equitable concerns but which has been completely codified by the Code, making ad hoc decisions inappropriate.19

A complicating factor is that the Code is a patchwork on choice of law. Sometimes it expressly adopts applicable non-bankruptcy law, sometimes it expressly overrides non-bankruptcy law, sometimes it's silent, and sometimes there is a subtle adoption or override.20 There is little legislative history on choice of law, though such as there is suggests that with the elevation of the bankruptcy bench and expanded subject matter jurisdiction comes a responsibility to apply choice of law principles as an Article III court would.21 Progeny of Raleigh are few, however, and as noted, two post-Raleigh decisions (CSC and US Airways) reached opposite conclusions on the identical issue.22

In light of Raleigh, it now seems clear that state law should prevail where the Code is silent, though there is little guidance on federal non-bankruptcy law. But the general principle that rights do not change due to the "happenstance of bankruptcy" seems applicable, as does the general principle that federal statutes should be harmonized with the more specific statute prevailing. If ERISA cases are any guide, the trend is toward a comfortable coexistence of the Code and other federal statutes, with federal non-bankruptcy statutes prevailing where the Code is silent.


1 Senior Assistant General Counsel, Pension Benefit Guaranty Corp. (PBGC), Washington, D.C. The views expressed in this article do not necessarily represent the views of the PBGC. Return to article

2 29 U.S.C. §1001, et seq. Return to article

3 See Things Remembered v. Petrarca, 516 U.S. 124, 129 (1995) (bankruptcy removal statute and general removal statute comfortably coexist and should be construed harmoniously). Return to article

4 "No provision of this title shall be construed to permit a trustee to unilaterally terminate or alter any provisions of a collective bargaining agreement prior to compliance with the provisions of this section." 11 U.S.C. §1113(f). Return to article

5 "[T]he trustee may avoid a transfer of property of the estate (1) made after the commencement of the case, and (2)...(B) that is not authorized under this title or by the court." 11 U.S.C. §549(a). Return to article

6 In re Unimet, 842 F.2d 879 (6th Cir. 1988). In different circumstances, the Sixth Circuit had held that only a portion of unpaid minimum funding contributions were entitled to administrative priority. In re Sunarhauserman, 126 F.3d 811 (6th Cir. 1997). Return to article

7 Cf. Campbell, M. and Hastie, R., "Executory Contracts: Retention Without Assumption in Chapter 11ÑÔRidethroughÕ Revisited," March 2000 ABI Journal 33. Return to article

8 See, e.g., Morton v. Mancari, 417 U.S. 535 (1974). Return to article

9 Batterton v. Francis, 432 U.S. 416 (1977); 5 U.S.C. §706. Return to article

10 In re CSC Industries, 232 F.3d 505 (6th Cir. 2000); In re CF&I Fabricators of Utah, 150 F.3d 1293 (10th Cir. 1998). Section 502(b) provides in relevant part that "the court shall determine the amount of [a] claim as of the date of the filing of the petition, and shall allow such claim in such amount, except to the extent" it meets one of nine exceptions. Section 1123(a)(4) provides in relevant part that a plan shall "provide the same treatment for each claim or interest of a particular class...." 11 U.S.C. §§502(b) and 1123(a)(4). As a practical matter, few claims are subject to a present value analysis at the allowance stage, since most are due and owing at the time the petition is filed. An example is a claim for damages for rejection of a lease under §§365(g) and 502(g) of the Code. While §502(b)(6) of the Code overrides state law by capping the claim at a percentage of the rent reserved, the present value of future rents is determined under state law. In re Highland Superstores, 154 F.3d 573 (6th Cir. 1998). More commonly, courts perform the reverse process, determining an interest rate that will preserve the "value" of an allowed priority or secured claim that is paid in installments under a confirmed plan. 11 U.S.C. §1129(a)(9)(B), (C) and (b)(2)(A)(i)(II). See, e.g., Till v. SCS Credit, 520 U.S. 953 (2004). Such a "cramdown" analysis does not apply to determination of the allowable amount of a general unsecured claim. Highland, 154 F.2d at 181-82. Return to article

11 The Sixth Circuit, which did not have the benefit of a full briefing on Raleigh, concluded that non-bankruptcy law governs the validity of a claim, while bankruptcy law governs allowability and amount. CSC, 232 F.3d at 509. Return to article

12 Erie R. v. Tompkins, 304 U.S. 64, 78 (1938); O'Melveny & Myers v. F.D.I.C., 512 U.S. 79 (1994). Return to article

13 440 U.S. 48 (1979). Return to article

14 Butner, 440 U.S. at 55, quoting Lewis v. Manufacturers Nat'l. Bank of Detroit, 364 U.S. 603, 609 (1961). Return to article

15 In re Landbank Equity, 973 F.3d 265 (4th Cir. 1992) (Congress recognized that with expanded subject matter jurisdiction under the Code, bankruptcy judges will need to apply state and federal law); In re LaPiana, 909 F.2d 221, 223-24 (7th Cir. 1990). ("[B]ankruptcy, despite its equity pedigree, is a procedure for enforcing pre-bankruptcy entitlements under specified terms and conditions rather than a flight of redistributive fancy or a grant of free-wheeling discretion such as the medieval chancellors enjoyed....") (citations omitted). Return to article

16 Vanston cited Pepper v. Litton, 308 U.S. 295 (1939), a classic case of subordination of the claim of an insider who had engaged in inequitable conduct. See, also, In re Madeline Marie Nursing Homes, 694 F.2d 433, 437 (6th Cir. 1982) ("Vanston and Pepper fall within limitations on bankruptcy claims termed the 'Deep Rock doctrine' and 'equitable subordination.' Under these doctrines, bankruptcy courts applied equitable principles to determine what claims would be allowed under the Act and their priority... These doctrines have never been applied, however, to oust state law in the original determination of the existence and amount of liability.") (citation and footnote omitted). Similarly, the Supreme Court explained that Vanston established "a rule only for the distribution of the bankrupt's assets. It did not hold that [a claim for post-petition interest] was void, but only that the claimant should not participate in the distribution of assets until all claims superior in conscience and fairness were paid." 530 U.S. at 23-24, quoting Fahs v. Martin, 224 F.2d 387, 394 (5th Cir. 1955). Thus, while the concept of "allowance" is used under both the Act and the Code, it means different things, and ignoring the distinction leads to confusion. Return to article

17 See, e.g., Patterson v. Shumate, 504 U.S. 753 (1992); Toibb v. Radloff, 501 U.S. 157 (1991); U.S. v. Ron Pair Enterprises Inc., 489 U.S. 235 (1989) (all taking a "plain language" approach to the Code). Return to article

18 Grupo Mexicano Desarrollo v. Alliance Bond Fund, 527 U.S. 308 (1999). See, e.g., Norwest Bank Worthington v. Ahlers, 485 U.S. 197, 206 (1988) (equitable powers "must and can only be exercised within the confines of the Bankruptcy Code."); In re Chi. Milw. St. P. & Pac. R., 791 F.2d 524 (7th Cir. 1986) (bankruptcy judges do not have free-floating equity powers, "however enlightened [their] views may be."); U.S. v. Sutton, 786 F.2d 1305, 1308 (5th Cir. 1986) (§105(a) does not "constitute a roving commission to do equity."). Return to article

19 11 U.S.C. §§502(b) and 506(b). U.S. v. Ron Pair Enterprises Inc., 489 U.S. 235 (1989); United Sav. Ass'n. of Texas v. Timbers of Inwood Forest Associates, 484 U.S. 365 (1988). See In re Sublett, 895 F.2d 1381 (11th Cir. 1990). Return to article

20 An express adoption of non-bankruptcy law is set out in §510(a) ("subordination agreement is the same extent that such agreement is enforceable under applicable non-bankruptcy law."). An example of an express override is §1123(a) ("notwithstanding any otherwise applicable nonbankruptcy law, a plan shall..."). An example of an implicit adoption of non-bankruptcy law is §553(a) ("except as otherwise provided...this title does not affect any right of a creditor to offset a mutual debt..."). An example of an implicit override is §1111(b) ("a claim secured by a lien...shall be allowed or disallowed...the same as if the holder of such claim had recourse against the debtor...whether or not such holder had such recourse..."). An example that includes both an express adoption and an express override is §541(c) ("Except as provided in paragraph (2) of this section, an interest of the debtor in property becomes property of the estate...notwithstanding any provision in...applicable non-bankruptcy lawÑthat restricts or conditions transfer of such interest by the debtor...; (2) A restriction on the transfer of a beneficial interest of the debtor in a trust that is enforceable under applicable non-bankruptcy law is enforceable..."). Return to article

21 See Landbank, supra n.15. Return to article

22 Though it does not cite Raleigh, In re Bank of New England Corp., 364 F.3d 355 (1st Cir. 2004), is consistent with the Supreme Court's approach. It holds that in applying a subordination agreement (which is enforceable to the same extent as under "applicable non-bankruptcy law," 11 U.S.C. §510(c)), state law, not pre-Code federal common law, fills the interstices. Pre-Raleigh cases that apply non-bankruptcy law include Nathanson v. NLRB, 344 U.S. 25 (1952) (back-pay claim is to be adjudicated by the NLRB, though the status of the claim is to be determined by bankruptcy law); In re Highland Superstores, 154 F. 3d 573 (6th Cir. 1998) (in applying Code §502(b)(6)'s limitation on claims for termination of a lease, future rents are discounted at the applicable state law rate); In re Western Real Estate Fund, 922 F.2d 592 (10th Cir. 1990) (Code §502(b)(4) limits attorney's fees to a reasonable amount, but the threshold question is whether a contingent fee was earned under state law); and In re Tucson Estates, 912 F.2d 1162 (9th Cir. 1990) (state law governs the scope of a real estate covenant and damages for breach, though treatment of the claim is a matter of bankruptcy law). Return to article

Journal Date: 
Wednesday, December 1, 2004