BANKRUPTCY DEPARTMENT CHAIRS & PROFESSIONALS
Skilled Counsel For Clients Addressing Employee Benefits In Bankruptcy And Restructuring
Our bankruptcy and restructuring group practices at the intersection of bankruptcy law and employee benefits law. Our attorneys provide special counsel support on employee benefits matters to debtors, creditors, ad hoc or official creditor or equity committees, trustees, Taft-Hartley plans, employee groups or retiree associations, and other stakeholders. Where necessary, they will zealously litigate on their behalf. Our team draws on the support of our Employee Retirement Income Security Act (ERISA), employee benefits and executive compensation, labor, employment and HR, investment management, mergers and acquisitions, litigation, fiduciary compliance and independent fiduciary services practices.
Our bankruptcy and restructuring group also utilizes the firm’s unique and in-depth experience in Pension Benefit Guaranty Corporation (PBGC) counseling, disputes and litigation. Led by Israel “Izzy” Goldowitz, former chief counsel to the PBGC, our lawyers regularly represent clients in PBGC investigations, terminations and claims disputes, which commonly arise in restructuring or bankruptcy settings. Our attorneys also counsel clients on plan fiduciary and administration matters, mergers and acquisitions, and executive compensation, which pose unique challenges in restructuring, bankruptcy planning and bankruptcy.
Well Equipped To Address All Issues Regarding Bankruptcy And Restructuring
Our team is deeply experienced in the following issues that often arise in the context of a bankruptcy or restructuring:
- Pension funding issues, including funding waivers
- Termination of single-employer plans
- Plan mergers, spinoffs, assumptions or replacements
- Plan freezes, annuitization and other forms of de-risking
- Funding improvement or rehabilitation plans for multiemployer plans
- Employer securities issues
- Withdrawal from multiemployer pension plans
- Claims resulting from plan termination or withdrawal
- Settlor versus fiduciary functions and conflicts of interest
- Executive compensation and nonqualified retirement plans
- Modification or termination of defined contribution plans
- Modification or termination of health and other welfare plans
- Negotiation of labor agreements or managing employee relations
- Retirement benefits in personal bankruptcies
- Investigations or claims by the U.S. Department of Labor (DOL), the Internal Revenue Service (IRS) or the PBGC
Relevant Experience In Complex Bankruptcy Cases
Highlights of our attorneys’ experience (including experience before joining our firm):
- Representing a Chapter 7 trustee as special employee benefits counsel in In re: David Pulver Pray (Bankr. N.D W.Va.), involving unique issues around the exclusion and exemption of single-participant retirement plan assets from the bankruptcy estate
- Representing a retirees association in In re: The McClatchy Company (Bankr. S.D.N.Y) in connection with benefits under nonqualified plans
- Leading PBGC’s investigations, negotiation and litigation in widely reported Chapter 11 cases including:
- AMR/American Airlines (Bankr. S. D.N.Y.)
- CF&I Steel (Bankr. D. Utah) and CSC/Copperweld (Bankr. N.D. Ohio)
- Philip Services (Bankr. S.D. Tex.)
- WCI Steel (Bankr. N.D. Ohio)
- Negotiating PBGC’s pre-Chapter 11 bankruptcy settlements with, among others:
- Sears, over monetization of its Craftsman brand and real estate
- Chrysler, over the departure of a controlled group member
- Consulting with debtors on bankruptcy planning:
- West Texas Oil Reserves LLP
- LTV Steel Corporation
- Southwest Merchant Guarantor Corporation
- Writing appellate briefs on novel bankruptcy issues, including amicus briefs before the Supreme Court of the United States
- Representing Chapter 11 debtors (g. LTV Steel Corporation, Republic Steel) on treatment of their employee benefits, including executive compensation programs, defined benefit plans, defined contribution plans and welfare plans
- Representing creditors and creditor committees, including Chemical Bank, TCB Chase, M Bank and Bank One, in Chapter 11 proceedings
- Representing debtors or Chapter 7 trustees in terminating underfunded defined benefit plans and resolving liability to the PBGC
- Supporting Chapter 7 trustees in their mandated roles as plan administrators under the Bankruptcy Code to abandoned retirement and benefit plans
- Representing lenders, including Chemical Bank, Mercantile Bank and TCB Chase Manhattan, on Chapter 11 extensions of credit, including debtor in possession (DIP) financings
- Representing debtors on administrative issues such as final plan audits, participant distributions and blackout periods
- Representing debtor LTV Steel Corporation on restructuring of debt in connection with PBGC settlements
RESOURCES:
What Takes Precedence, The Employee Retirement Income Security Act Or The Bankruptcy Code?
Choice-of-law and preemption issues often arise in bankruptcy cases involving employee benefits. The short answer is that ERISA remains in full effect except in areas where the Bankruptcy Code clearly takes precedence. There are many nuances to the interplay between these two vast bodies of law, however, which is why knowledgeable legal counsel is so imperative when navigating these intricacies.
Chapter 7 Vs. Chapter 11 Bankruptcy
Business bankruptcies typically proceed down one of two avenues:
- Chapter 11 bankruptcy involves the reorganization of debts and finances, which may include employee retirement and pension plans subject to ERISA.
- Chapter 7 bankruptcy involves liquidation of assets, which typically results in the termination of employee benefits.
Our lawyers are experienced in handling both types of bankruptcy proceedings, and they advise clients on the advantages and disadvantages of each in light of their unique circumstances.
Enlist An Experienced Legal Team
Our attorneys have vast experience addressing the intersection of bankruptcy and employee benefits. To learn more about our services, please contact us online or call 617-357-5200 to reach a member of our team.