Pension De-Risking State Legislative Update

With interest rates low and the corporate desire to reduce liabilities high, pension de-risking transfers continue at a rapid pace.  While Verizon was one of the first, since 2012 many companies including GM, J.C. Penney, United Technologies, PPG Industries and Lincoln Electric have de-risked by transferring their pension liabilities to an insurance company.  These pension de-risking transfers have impacted hundreds of thousands of retirees nationwide.

Since retirees in de-risking transactions lose all of the uniform protections intended by Congress under ERISA, including the PBGC back-stop, the enactment of legislation at the state level to replace what was lost is essential.

In 2015, Connecticut became the first state to pass legislation protecting retirees in pension de-risking transfers by restoring creditor protections to retirees whose pensions were replaced by group annuities issued by insurance companies. In 2016, legislation that would have provided additional critical protections stalled despite an insurance committee vote of 17-2 in favor of this legislation. In January of 2017, ProtectSeniors.org headed back to the drawing board and worked with Senator Carlo Leone to introduce a new bill.  Senator Leone introduced Proposed Bill 493 and a public hearing was held on February 16th. The Joint Committee on Insurance and Real Estate voted 16-5 in favor of Proposed Bill 493.  On March 10, 2017 the bill was filed with the Legislative Commissioner’s Office – the next stop will be the Senate floor.

In New York, legislation introduced in 2015/2016 stalled in New York’s politically charged insurance committee. Dedicated members of ProtectSeniors.org are working to move things along in New York.

In Massachusetts, House Bill 476, introduced by Representative James Arciero would provide creditor protections, limitations of subsequent transfers, and financial disclosures to retirees impacted by pension de-risking transfers. The bill has been referred to the Joint Committee on Financial Services.  

And finally, in Pennsylvania, House Bill 324 providing creditor protections to retirees was introduced by Representative Warren Kampf.  This bill was referred to the Judiciary Committee on February 3, 2017.

A version of this post appeared in the ProtectSeniors.org recent newsletter.

Public Hearing on Connecticut De-Risking Bill

Edward Stone, as special counsel to ProtectSeniors.org provided testimony at a Public Hearing in Hartford, Connecticut on February 16, 2017 in support of Proposed Bill No. 493 “AN ACT CONCERNING THE PURCHASE OF AN ANNUITY TO FUND PENSION AND RETIREMENT BENEFITS”.  Jack Cohen, Chairman of the Association of Bell-Tel Retirees, Inc. and Bill Jones, Co-founder and Chairman of ProtectSeniors.org also submitted written testimony in support of Senate Bill No. 493.  This bill, sponsored by Senator Carlo Leone (D-27) will provide additional protects to retirees by requiring reasonable restrictions on subsequent transfers and annual financial disclosures to retirees. Senator Leone also submitted a written statement in support of Senate Bill 493. In 2015 ground breaking legislation was passed in Connecticut providing protections to retirees in pension de-risking transfers when the Connecticut legislature unanimously passed H.B. 6772 providing creditor protections to retirees in pension de-risking transfers.  On July 2, 2015 Governor Dannel P. Malloy (D) signed Public Act 15-167 into law  restoring creditor protections to Connecticut retirees impacted by  pension de-risking transfers. Without this legislation, creditors were able to garnish annuity payments designed for retirement.

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New Proposed Pension De-Risking Bill in Connecticut

Connecticut State Senator Carlo Leone (D – 27) has introduced Proposed Bill No. 493 “AN ACT CONCERNING THE PURCHASE OF AN ANNUITY TO FUND PENSION AND RETIREMENT BENEFITS”. This proposed bill requires an insurance company to provide certain annual disclosures to employees and retirees impacted by pension de-risking transfers involving the purchase of a group annuity contract to fund retirement benefits and would limit subsequent transfers of those annuity contracts. Edward Stone Law will be working with ProtectSeniors.org to educate legislators and retirees about the benefits of this important legislation. For more information please visit our website at www.edwardstonelaw.com or call (203) 504-8425.

United Technologies Corp. Announces Pension De-risking

The pension de-risking trend continues. Farmington, Connecticut based United Technologies Corp. (UTC) will transfer $775 million of its outstanding pension benefit obligations under two of its retirement plans to The Prudential Insurance Company of America.  HartfordBusiness.com, a publication of The Hartford Business Journal quoted Robin Diamonte, UTC’s chief investment officer as saying “This transaction is an important part of United Technologies’ long-term strategy to reduce future pension risk and expense”.  UTC also offered certain retirees an option to take a one-time lump sum distribution. UTC expects approximately 10,000 retirees to accept the lump sum distribution. By year end, UTC will have reduced its pension obligations by approximately $995 million.

Thanks to the efforts of ProtectSeniors.org and Edward Stone Law, special counsel to the retiree advocacy group, UTC’s Connecticut based retirees do not have to worry that their annuity payments will be subject to creditors’ claims.   ProtectSeniors.org and Edward Stone Law worked tirelessly with Connecticut legislators to enact Public Act 15-167 which went into effect on October 1, 2015 provides creditor protections to retirees impacted by pension de-risking transfers.  The ground breaking Connecticut law is the result of bipartisan legislation sponsored by Rep. Robert Megna (D-97), Rep. Livvy R. Foren (R-149), Louis P. Esposito, Jr. (D-116) and Sen. Henri Martin (R-31).  Connecticut was the first state in the nation to pass legislation protecting retirees in pension de-risking transfers.

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PPG Industries Enters the Pension De-risking Arena

PPG Industries, a Fortune 200 global manufacturer of paints, coatings and optical products has entered into agreements with Metropolitan Life Insurance Company and Massachusetts Mutual Life Insurance Company to provide annuity benefits to 13,400 retirees removed from PPG’s defined benefit pension plans.  In what appear to be  annuity “lift-out’s” PPG has purchased group annuity contracts from MetLife and MassMutual to cover pension obligations of approximately $1.6 billion.  These pension de-risking transfers involve both salaried and non-union hourly employees. Annuity “lift-out’s” occur when a defined benefit plan sponsor amends its defined benefit plan (a “settlor” or administrative decision, not a fiduciary decision), does not terminate the defined benefit plan, but rather moves selected employees or retirees out of the defined benefit plan. De-risked plan participants become “certificate holders” under a group annuity contract they do not own.  These retirees lose all of the uniform benefits intended by Congress under ERISA and become subject to non-uniform state laws.  We expect to see many similar pension de-risking transactions in 2016. One of our clients, ProtectSeniors.org is actively working to protect retirees’ rights in pension de-risking transactions.  For more information, please contact us at (203) 504-8425 or eddie@edwardstonelaw.com.

Public Hearing on pension derisking legislation in Connecticut

On Thursday, March 3, 2016 the Insurance and Real Estate Committee of the Connecticut General Assembly will hold a public hearing on proposed legislation regarding protections for retirees in pension derisking transfers.  The hearing will be held at 1:00 p.m. in the Legislative Office Building at 300 Capitol Avenue, Hartford, CT 06106.  The full text of the proposed bill, Raised H.B. No. 5445 can be found here.  This proposed bill provides much needed disclosures to employees and retirees and limits subsequent transfers of such annuity contracts to highly rated insurance providers.

Additional Pension Derisking Legislation Pending in Connecticut!

ProtectSeniors.org has done it again!  Raised Bill No. 5455 entitled “An Act Concerning the Purchase of An Annuity to Fund Pension Benefits” has been introduced in the Connecticut legislature.  The proposed legislation requires disclosures to retirees impacted by pension derisking transfers and limits subsequent transfers of the annuity contract to “an entity that maintains a rating equivalent to an A or better from two or more nationally recognized rating agencies.”  This proposed legislation will enhance the ground-breaking legislation passed by Connecticut last year under Public Act 15-167 which went into effect on October 1, 2015, providing creditor protections to retirees in pension derisking transfers.

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New Hampshire Ups Guaranty Association Coverage

New Hampshire has increased guaranty association coverage for annuity contracts  from $100,000 to $250,000.  While this is still $250,000 less than the coverage offered by New York, Connecticut, New Jersey and Washington, it puts New Hampshire in line with the coverage offered by thirty-seven other states.

This increase in coverage is very important to retirees in pension de-risking transactions. Typically, in the event of an insurance company or annuity provider insolvency, a retiree would be protected by the laws of the state he/she resides in at the time the insurance company is declared to be insolvent or impaired.  Retirees may unwittingly divest themselves of guaranty association coverage by moving after the transfer of their pension obligations. A retiree living in New York with $500,000 of potential coverage would find himself or herself with just $250,000 of coverage after relocating to New Hampshire.

ProtectSeniors.org Op-ed by Chairman Bill Jones

An excellent op-ed was published by Fort Worth’s Star-Telegram in late October, written by C. William Jones, the Chairman of ProtectSeniors.org.  The piece focused on the pension de-risking crisis facing today’s retirees.  Plano, Texas based J.C. Penney was the latest company to join the de-risking bandwagon, offering both lump-sum buyouts and transferring it pension obligations to 43,000 retirees buy purchasing a group annuity contract.

Cleveland Plain Dealer – Pension De-Risking

Edward Stone’s guest column – reprinted below – appeared in the Sunday, October 4, 2015 edition of Cleveland’s “The Plain Dealer.”

“Euclid-based Lincoln Electric Co. has become the latest company to join the pension de-risking bandwagon. By offloading its retirees’ pension obligations through the purchase of a group annuity contract from The Principal Financial Group, as of Nov, 1, 2015, Lincoln Electric will have no further obligations to 1,900 former employees.

Once Lincoln Electric chose to purchase a group annuity contract and transfer its pension obligations, its retirees lost all the uniform federal law protections intended by Congress under the Employee Retirement Income Security Act (ERISA). These protections include: ready access to the federal court system; uniform protection from creditors; and mandatory disclosures. Plus, all defined benefit plans that fall under ERISA are backstopped by the federal Pension Benefit Guaranty Corp. (PBGC), which provides annual payments to pensioners that increase based on age.

Lincoln Electric retirees are not the only retirees adrift in the pension de-risking boat. Verizon, General Motors, and Kimberly-Clark are among others in the new fraternity of companies who abandoned their loyal retirees so they could reduce their corporate exposure to volatility.

Why should retirees worry about pension de-risking?

First, it is unclear that the insurance industry has the long-term financial capacity to meet these new obligations to so many retirees. As the 2008 fiscal crisis demonstrated, no company is “too big to fail.” Certainly not Bear Stearns, Lehman Brothers or Merrill Lynch. Earlier this summer, the International Monetary Fund and the Organization for Economic Cooperation and Development both warned that pension de-risking and other pension trends might threaten the stability of the U.S. financial system.

While it’s hard to get accurate data about the breadth, scope and concentration risk associated with de-risking, at least one industry spokesperson estimated that more than $250 billion in pension risk transfers have already taken place in the United States, Canada and the United Kingdom since 2007. That’s a lot of risk!

The Internal Revenue Service recently shut down the most popular method of pension de-risking by banning lump-sum distributions to retirees, forcing companies to turn to the use of insurance industry annuity products to offload their pension obligations. This is what Lincoln Electric has done.

Second, if the insurance company managing your pension assets goes belly up, beware of insurance insolvency laws. Insurance companies cannot file for bankruptcy like most other businesses.

When an insurer bites the dust, it becomes subject to state insolvency laws, which are arcane, nonuniform and, in some cases, inefficient. Liquidation plans usually trigger the obligations of the individual state guaranty associations, most of which are unfunded or underfunded. In addition, these state guaranty associations provide “coverage” in ways that might not make sense to the average Joe.

That’s exactly what happened when the Executive Life Insurance Co. of New Yorkliquidated after 22 years of failed “rehabilitation.”

Multistate insolvencies are highly complex and sometimes opaque. They require the coordination of all of the relevant guaranty associations, many of which offer coverage amounts that range from $100,000 per individual per lifetime to $500,000 per individual per lifetime.

Ohio’s life insurance guaranty association offers only $250,000 of “lifetime” protection to annuitants, which is in sharp contrast to the annual coverage provided to pensioners by the PBGC. This lifetime coverage limit is also inclusive of any individual’s life insurance policies.

The unilateral decision by corporate America to shift the risk associated with earned benefits onto the shoulders of vulnerable older Americans is simply wrong. Taking away uniform protections and subjecting retirees to the vagaries of state law – where the business of insurance is regulated – is discriminatory and unfair.

Among the other numerous unacknowledged dangers of de-risking is that, unlike pensions, insurance annuities may be subject to creditor claims and bankruptcy.

It’s why Ohio retirees need to tell their state elected officials about the new dangers of pension de-risking and the need to immediately put legal protections in place without delay.

The nonprofit ProtectSeniors.Org has already made headway in Connecticut and New York to protect retirees in those states from creditor claims against their newly de-risked pension assets. Efforts to protect more retirees from discrimination are underway across the country.

Pension de-risking is a true and growing retiree crisis in America. Ohio retirees and their legislators should take action before it is too late.

Edward Stone, who lives in Connecticut, is special counsel to ProtectSeniors.Org, a nonprofit retiree advocacy organization.”