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1 Document Page 1 of 12 IN THE UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA In re: ) Chapter 11 ) PHILADELPHIA NEWSPAPERS, LLC, et al., 1 ) Case No (SR) ) ) Jointly Administered Debtors. ) ) Re: Dkt. No. 948 PBGC S OBJECTION TO DEBTORS MOTION FOR ENTRY OF AN ORDER APPROVING, INTER ALIA, DISCLOSURE STATEMENT The Pension Benefit Guaranty Corporation ("PBGC"), a United States government agency, hereby objects to the above-noted motion (the Motion ) with regard to the proposed Disclosure Statement (filed August 20, 2009, Docket No. 946) (the Disclosure Statement ) filed by Debtors. The Disclosure Statement as it is presently drafted fails to provide adequate information, as that term is defined under 11 U.S.C. 1125(a). In particular, the Disclosure Statement fails to provide adequate information regarding (1) the Debtors obligations and liabilities to PBGC and the Philadelphia Newspapers, LLC CWA Union Pension Fund (the Pension Plan ), (2) the need for broad release, exculpation, and discharge of non-debtor liability, and (3) Debtors liquidation analysis and financial projections. PBGC has provided proposed language to be inserted in the Disclosure Statement to resolve some of its objections. 1 The Debtors in these chapter 11 cases are: Philadelphia Newspapers, LLC; Broad Street Video, LLC; Philadelphia Media, LLC; PMH Acquisition, LLC; Philadelphia Direct, LLC; Broad Street Publishing, LLC; Philly Online, LLC; PMH Holdings, LLC; and Philadelphia Media Holdings, LLC.

2 Document Page 2 of 12 BACKGROUND A. PBGC and the Employee Retirement Income Security Act 1. PBGC is the United States government agency that administers the termination insurance program under Title IV of ERISA, which covers most private defined-benefit pension plans. The program guarantees a secure, predictable retirement for approximately 44 million American workers. 2 When a pension plan covered by Title IV terminates without sufficient assets to pay promised benefits, PBGC typically becomes the statutory trustee of the plan and pays covered plan participants and their beneficiaries their pension benefits up to the limits established by Title IV Pursuant to ERISA, a sponsor of a pension plan covered by Title IV and the sponsor s controlled group members must satisfy certain financial obligations to the plan. 4 ERISA imposes responsibility on a controlled group member regardless of whether its employees participate in the pension plan. The responsibilities of the plan sponsor and controlled group members to an on-going pension plan include the following: (1) administering the pension plan, 29 U.S.C ; (2) paying the statutorily required minimum funding contributions to the pension plan, 26 U.S.C. 412(c)(11) (2007); 29 U.S.C. 1082(c)(11) (2007); and 26 U.S.C. 412(b)(1), (2) (2009); 29 U.S.C.A. 1082(b)(1), (2) (2009); 5 ; and (3) 2 PBGC 2008 Annual Management Report at 1, 3 See 29 U.S.C. 1321, 1322, and A group of trades or business under common control, referred to as a controlled group, includes, for example, a parent and its 80% owned subsidiaries. Another example includes brother-sister groups of trades or business under common control. See 29 U.S.C. 1301(14)(A), (B); 26 U.S.C. 414(b), (c); 26 C.F.R (b)-1, 1.414(c)-1, 1.414(c)-2. 5 References to 26 U.S.C. 412, or to 29 U.S.C.A. 1082, with a date of 2007 refer to the pre- Pension Protective Act of 2006 ( PPA ) provisions in effect for pension plan years beginning on 2

3 Document Page 3 of 12 paying flat-rate and variable-rate insurance premiums to PBGC, 29 U.S.C. 1306, The liabilities of the plan sponsor and controlled group members with regard to the pension plan are joint and several. See 26 U.S.C. 412(c)(11) (2007); 26 U.S.C. 412(b)(2) (2009); 29 U.S.C. 1082(c)(11) (2007); 29 U.S.C.A. 1082(b)(2) (2009). 6 See also 29 U.S.C. 1307(e)(2), 1362(a). Therefore, should the plan sponsor default on its obligations to a pension plan, the resulting liability for the plan rests with its controlled group members. 3. ERISA provides the exclusive means for a plan sponsor to terminate a pension plan -- a standard termination or a distress termination. See 29 U.S.C. 1341(a)(1); see also Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 446 (1999). A standard termination requires sufficient assets to pay all of the pension plan s promised benefits. See 29 U.S.C. 1341(b)(2)(A)(i)(III). A distress termination requires a showing, among other things, that each plan sponsor and controlled group member satisfies one of the three financial distress criteria: (i) liquidation in bankruptcy; (ii) inability to reorganize in bankruptcy unless the pension plan terminates; or (iii) inability to pay debts when due and continue in business unless the pension plan terminates. See 29 U.S.C. 1341(c)(2)(B). Separate from a standard and distress termination, PBGC can initiate termination of a pension plan pursuant to section 4042 of ERISA ( PBGC-initiated termination ). 29 U.S.C Upon a distress termination or a PBGC-initiated termination of a pension plan, the contributing sponsor and controlled group members are still subject to certain liabilities with regard to the terminated pension plan. For example, they become jointly and severally liable to PBGC for unfunded benefit liabilities of the pension plan. 29 U.S.C. 1362(a), (b). ERISA or before December 31, References with a date of 2009 refer to the PPA 2006 provisions in effect for pension plan years beginning after December 31, See id. 3

4 Document Page 4 of 12 explicitly assigns the recovery of a terminated pension plan s unfunded benefit liabilities exclusively to PBGC. 29 U.S.C. 1362(b). 5. Upon termination, the plan sponsor and controlled group members remain jointly and severally liable to PBGC for any unpaid premiums -- not just the flat-rate and variable-rate premiums but also a termination premium at the rate of $1,250 per plan participant per year for three years. See 29 U.S.C. 1306(a)(7), as amended by 8101(b) the Deficit Reduction Act of 2005 (Pub. L. 109-B171) and by 401(b) and 402(g)(2)(B) of the Pension Protection Act of 2006 (Pub. L. 109-B280). If the plan termination occurs while the plan sponsor and any controlled group members are attempting to reorganize in Chapter 11, and they ultimately obtain confirmation of a Chapter 11 plan of reorganization, their obligation to PBGC for termination premiums does not exist until after the Chapter 11 plan is confirmed and the Debtors exit bankruptcy. See 29 U.S.C. 1306(a)(7)(B). Thus, under those circumstances, termination premiums are not a dischargeable claim or debt within the meaning of 11 U.S.C. 101(5) and Finally, because PBGC has become the statutory trustee of the terminated pension plan, it has authority to collect all amounts owed to the plan, including any unpaid minimum funding contributions for which the plan sponsor and controlled group members are jointly and severally liable. See 29 U.S.C. 1082(c), 1342(d), 1362(a), (c); 26 U.S.C. 412(c). B. Debtors and the Pension Plan 7. Philadelphia Newspapers, LLC ( Philadelphia Newspapers ), one of the Debtors in this jointly administered bankruptcy case, sponsors the Pension Plan. It is believed that the Pension Plan is a defined benefit plan covered by Title IV of ERISA. See 29 U.S.C

5 Document Page 5 of 12 The other Debtors are members of Philadelphia Newspapers controlled group within the meaning of ERISA. 29 U.S.C. 1301(a)(14). 8. The Pension Plan provides retirement benefits to approximately 251 employees and retirees of the Debtors. If the Pension Plan were to terminate, the Debtors and any other members of Philadelphia Newspapers controlled group would become jointly and severally liable to PBGC for the Pension Plan s unfunded benefit liability, unpaid premiums, liability under 29 U.S.C. 1362(c), and any unpaid minimum funding contributions. See 29 U.S.C 1301(a)(18), 1306(a)(7), 1362(a)-(c). C. Debtors Bankruptcy Proceedings 9. On February 22, 2009, most of the Debtors filed voluntary petitions under Chapter 11 of Title 11 of the United States Code; Debtor Philadelphia Media Holdings, LLC filed its petition on June 10, On February 24, 2009, this Court ordered joint administration of the Debtors chapter 11 cases for procedural purposes under Case No (KJC). 10. As of April 30, 2009, PBGC estimated that the Pension Plan s unfunded benefit liability is approximately $10,340,763 and has accordingly filed claims against the Debtors for this underfunding, as well as any unpaid minimum funding contributions and premiums. 7 PBGC s claim for unfunded benefit liabilities is contingent upon the Pension Plan s termination. It is not yet certain whether the Pension Plan will be terminated, or if a reorganized Debtor or purchaser of assets of the Debtors will continue to maintain the Pension Plan after confirmation of a plan of reorganization. 11. Debtors Disclosure Statement and proposed Plan was filed August 20, See Claims Register, Claim Nos

6 Document Page 6 of 12 ARGUMENT PBGC, on its own behalf and on behalf of the Pension Plan, objects to the Disclosure Statement because it fails to inform creditors of the facts that may affect the value of their claims and, therefore, does not provide adequate information, as required by 11 U.S.C. 1125(a). As used in that section, adequate information means: information of a kind, and in sufficient detail, as far as is reasonably practicable in light of the nature and history of the debtor... that would enable a hypothetical reasonable investor... to make an informed judgment about the plan. This means that the Disclosure Statement should include, inter alia, such items as a description of known claims and an estimated return to creditors. See e.g., In re Metrocraft Publishing Services, Inc., 39 B.R. 567, 568 (Bankr. N.D. Ga 1984) (cited by Phoenix Petroleum Co., 278 B.R. 375, 393 n.6 (Bankr. E.D. Pa. 2001)); In re William F. Gable Co., 10 B.R. 248 (Bankr. N.D. W. Va. 1981). The Disclosure Statement falls short of providing such information. Specifically: 1. The Disclosure Statement fails to give creditors adequate information regarding the Debtors obligations and liabilities to the Pension Plan and PBGC. In fact, the Disclosure Statement provides for the improper and unlawful treatment of the Pension Plan as an executory contract; it states that any employee benefit program not specifically assumed by the Plan of Reorganization and not otherwise already terminated shall be treated as though they are executory contracts that are rejected under the Plan. Disclosure Statement, Section VI.F.4. It is well-settled law that defined benefit pension plans subject to Title IV of ERISA, such as the Pension Plan, are not executory contracts and may only be terminated pursuant to Title IV of ERISA. 8 8 See, e.g., 7 COLLIER ON BANKRUPTCY [1] (15th ed.) ( [c]ourts have held that a pension plan may not be rejected... as an executory contract ); In re Philip Servs. Corp., 310 6

7 Document Page 7 of 12 The Disclosure Statement should inform creditors whether the Debtors intend to continue or terminate the Pension Plan pursuant to ERISA and, if the intent is to terminate, the extent of Debtors resulting liabilities under ERISA. In addition, if the Debtors intend to seek a distress termination of the Pension Plan, the Disclosure Statement should explain how the Debtors will address their collective bargaining obligations related to the Pension Plan since 29 U.S.C. 1341(a)(3) prohibits PBGC from processing a distress termination if it would violate the terms and conditions of an existing collective bargaining agreement. The Disclosure Statement should also state that, as provided by ERISA, the Debtors are jointly and severally liable for the Pension Plan s unfunded benefit liabilities, unpaid minimum funding contributions, unpaid premiums, and liability under section 1362(c) of ERISA and that PBGC has filed claims against the Debtors for these liabilities. Suggested language resolving this objection is provided below. 2. The Disclosure Statement fails to provide adequate information justifying the need for overly broad releases, exculpation, and discharge of non-debtor liability. See Disclosure Statement, Section VI.J.1 and 2; Plan, Article I., Section 1.01, Releasees. The Disclosure Statement states that the proposed Plan of Reorganization would purportedly release, exculpate, and discharge not merely the Debtors, but non-debtors i.e., directors, members, managers, officers and employees of the Debtors and the current and former officers, directors, employees, agents, stockholders, managers, members, affiliates, partners, advisors and professionals of several non-debtor third-parties. Id. Suggested language that resolves this objection is provided below. B.R. 802, (Bankr. S.D. Tex. 2004) (holding that pension plan may not be rejected as an executory contract); In re Diversified Indus., Inc., 166 B.R. 141, 143 (Bankr. E.D. Mo. 1993) ( Since the [p]lan is not solvent, the only method of termination is by means of a distress termination pursuant to 29 U.S.C. 1341(c). ). 7

8 Document Page 8 of The extent to which claims against the Debtors are released is not adequately disclosed. The Disclosure Statement asserts that on the Effective Date, all property of the Debtors not conveyed to the Purchaser under the Asset Purchase Agreement shall automatically vest in the Liquidating Trust, free and clear of all claims, liens, etc. Disclosure Statement, Section VI.G. But by failing to discuss the circumstances of the Pension Plan, this is misleading to the reader. If the Pension Plan is not terminated during the bankruptcy, it will remain a responsibility of the reorganized Debtors. Suggested language disclosing these Pension Planrelated obligations is provided below. 4. Debtors fail to mention or describe the PBGC-filed claims in the Disclosure Statement, and to explain the difference in the total claim amounts if the Pension Plan does or does not terminate. The Disclosure Statement should, but does not, disclose the adequacy of the Debtors cash as of the Plan of Reorganization s Effective Date to pay these claims as required under 11 U.S.C. 1129(a). 5. The Disclosure Statement fails to provide a liquidation analysis. See Disclosure Statement, Section X.D. The analysis is identified as Appendix C to the Disclosure Statement, but that Appendix merely states to come. A liquidation analysis, however, is a necessary part of disclosure so that creditors can accurately assess whether they have sufficient information to decide whether to vote for the proposed plan of reorganization or whether they are better off with a conversion to a Chapter 7 liquidation. Debtors conduct falls well short of the legal standard for notice, hearing, and Court approval of disclosure before votes can be solicited, let alone cast. Lacking any liquidation analysis to review, PBGC reserves its rights to demand adequate time to consider it when it is provided, and to raise any necessary objection to its timing and sufficiency. 8

9 Document Page 9 of Similarly, the Disclosure Statement fails to provide financial projections. It states that the Financial Projections are attached as Appendix B, but that Appendix merely states, to come. Financial projections help a creditor assess whether a proposed plan of reorganization is feasible that is, whether the reorganized entity has reasonable prospects of continuing in business. PBGC s review of such documents routinely includes careful consideration of whether the Debtors can be expected to bear the anticipated expense of continuing its pension plan. Again, PBGC is concerned about the adequacy of these projections, including their consideration of the anticipated costs of the Pension Plan, such as funding the Pension Plan should it remain ongoing or paying statutory liabilities i.e., unfunded benefit liabilities and termination premiums should the Plan terminate. Lacking financial projections, PBGC reserves its rights to demand adequate time to consider them when provided, and to raise any necessary objection to their timing and sufficiency. PROPOSED LANGUAGE In order to resolve some of the objections, above, regarding adequate disclosure related to PBGC s claims and the Pension Plan, PBGC proposes the following additions to the Disclosure Statement: Debtor Philadelphia Newspapers, LLC sponsors Philadelphia Newspapers, LLC CWA Union Pension Fund (the Pension Plan ), which is asserted to be a defined benefit pension plan covered by Title IV of the Employee Retirement Income Security Act of 1974, as amended ( ERISA ) 29 U.S.C All of the Debtors, as either the sponsor or member of the sponsor s controlled group (within the meaning of 29 U.S.C. 1301(a)(14)), are jointly and severally liable to contribute to the Pension Plan for the amounts necessary to satisfy ERISA s and the Internal Revenue Code s minimum funding standards ( Minimum 9

10 Document Page 10 of 12 Funding Contributions ). See 29 U.S.C. 1082, 1083 (as to 1083, effective for pension plans years beginning after December 31, 2007); 26 U.S.C. 412, 430 (as to 430, effective for pension plan years beginning after December 31, 2007). The Debtors are also jointly and severally liable for insurance premiums owed to the Pension Benefit Guaranty Corporation ( PBGC ). See 29 U.S.C. 1306, PBGC is the federal agency that administers the nation s defined benefit pension plan termination insurance program under Title IV of ERISA. When an underfunded pension plan terminates with insufficient assets to pay benefits, PBGC generally becomes statutory trustee of the plan and pays benefits to the plan s participants up to statutory limits. Should the Debtors decide to terminate the Pension Plan, ERISA provides the exclusive means to terminate a pension plan. See 29 U.S.C. 1341(a)(1). The Debtors may terminate the Pension Plan in a standard termination in accordance with 29 U.S.C. 1341(b) and corresponding regulations. See 29 C.F.R A standard termination requires sufficient assets to pay all of the pension plan s promised benefits. See 29 U.S.C. 1341(b)(2)(A)(i)(III). If a standard termination of the Pension Plan is not feasible, the Debtors may seek to terminate the Pension Plan in a distress termination. See 29 U.S.C. 1341(c). If the Debtors fail to meet the statutory requirements for a distress termination, the Pension Plan will remain ongoing, and the Debtors and any other controlled group members remain liable for amounts owed in continuing the Pension Plan. However, the Pension Plan may also be terminated by a PBGC-initiated termination. See 29 U.S.C. 1342(a). PBGC has filed timely proofs of claims against the Debtors for (1) the Pension Plan s underfunding on a termination basis ( Unfunded Benefit Liabilities ), (2) unpaid Minimum Funding Contributions a portion of which PBGC asserts is entitled to priority under 11 U.S.C. 507(a)(2), (5), and (3) unpaid premiums. As of April 30, 2009, PBGC estimates the Pension Plan s Unfunded Benefit Liabilities to be $10,340,763; this claim is contingent on the Pension Plan terminating, other than through a standard termination, during the bankruptcy and would be withdrawn if no such termination occurs. 10

11 Document Page 11 of 12 If the Pension Plan terminates in a distress termination pursuant to 29 U.S.C. 1341(c)(2)(B)(ii) or a PBGC-initiated termination under 29 U.S.C while the Debtor is attempting to reorganize in Chapter 11, and the Debtors ultimately are the subject of a confirmed Chapter 11 plan of reorganization, the Debtors will become liable to PBGC in addition to the flat- and variable-rate premiums for termination premiums in the amount of $1,250 for each Pension Plan participant for three years. The termination premium liability does not exist until after the Chapter 11 plan is confirmed and the Debtors exit from bankruptcy. See 29 U.S.C. 1306(a)(7)(B). Thus, under those circumstances, termination premiums are not a dischargeable claim or debt within the meaning of 11 U.S.C. 101(5) and However, if the Debtors Chapter 11 proceeding in essence becomes a liquidation, and the Pension Plan terminates in a PBGC-initiated termination, the termination premium becomes immediately due on the date the Pension Plan terminates, and PBGC typically asserts it as a administrative priority claim in the Debtors liquidating bankruptcy. Any termination of the Pension Plan shall be in conformity with statutory and regulatory requirements as well as the rules and requirements of the PBGC and the U.S. Internal Revenue Service. Any financial projections in support of the Disclosure Statement should be clear as to whether they include Pension Plan related amounts-- if so, in what amount and where, and if not, these amounts should be added. Furthermore, in order to resolve the objection, above, regarding adequate disclosure related to the proposed release or discharge of claims relating to the Pension Plan, PBGC proposes a further addition to the Disclosure Statement: Nothing in the Debtors bankruptcy proceedings, Confirmation Order, Plan of Reorganization, the Bankruptcy Code (and section 1141 thereof), or any other document filed in the Debtors bankruptcy case shall in any way be construed to discharge, release, limit, or relieve the Debtors, the Reorganized Debtors, or any other party, in any capacity, from any liability or responsibility with respect to the Philadelphia Newspapers, LLC CWA Union Pension Fund ( Pension Plan ) or any other defined benefit 11

12 Document Page 12 of 12 pension plan under any law, governmental policy, or regulatory provision. PBGC and the Pension Plan shall not be enjoined or precluded from enforcing such liability or responsibility by any of the provisions of the Plan of Reorganization, Confirmation Order, Bankruptcy Code, or any other document filed in any Debtors bankruptcy case. These matters should also be clarified in the Plan of Reorganization before it is distributed in any solicitation, and any order confirming it as well. CONCLUSION For the forgoing reasons, PBGC objects to Debtors Disclosure Statement and requests that it be modified as stated above. Dated: September 24, 2009 Washington, D.C. Respectfully submitted, /s/ Michael A. Maricco CHARLES L. FINKE Deputy Chief Counsel ANDREA M. WONG Assistant Chief Counsel MICHAEL A. MARICCO Attorney PENSION BENEFIT GUARANTY CORPORATION Office of the Chief Counsel 1200 K Street, NW, Suite 340 Washington, D.C ext (facsimile) efile@pbgc.gov Attorneys for Pension Benefit Guaranty Corporation 12

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