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The Bankruptcy Hotline
Pension Plan Increase Just Prior to Bankruptcy Is Voided
The Third Circuit has ruled that a pension plan amendment made only days before the sponsor filed for bankruptcy was voidable as a preferential transfer under ' 548. The court ruled that while the amendment was designed to retain employees during a time when the company was up for sale and might have conferred some value on the debtor, it was not, on the whole, useful as an independent means of maintaining it as an ongoing business prior to sale. Pension Transfer Corp. v. Beneficiaries Under the Third Amendment to Fruehauf Trailer Corp. Retirement Plan No. 003 (In re Fruehauf Trailer Corp.), No. 05-1374, (April 12).
Despite remedial efforts, the debtor continued to have financial difficulties. When there was insufficient cash to meet its payroll and other operating expenses, the board held an emergency meeting. Although the subject of this meeting was in dispute, the district court concluded that the three matters were discussed: The possibility of a Chapter 11 bankruptcy filing; a modified retention plan that would distribute immediate cash payments to 12 of the Key Employee Retention Program beneficiaries if they agreed to remain with the company; and an amendment to the Company's pension plan.
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