Background

PBGC was established by ERISA to pay participants in private defined  benefit plans in the event that the sponsor could not. PBGC is financed  through insurance premiums paid by sponsors and by investment returns  on held assets. Sponsors are responsible for making legally required  contributions to pension trust funds that are intended to be sufficient to  fund the promised benefits over time. Plan assets are then invested on  behalf of participating employees. The precise calculations for  determining annual minimum funding requirements are set forth in ERISA,  and compliance is monitored by the IRS. These requirements are designed  to provide reasonable assurance that a plan’s assets will be sufficient to  fund the accrued benefits owed to participants when they retire.
In 2005, we found that, of the 100 largest defined benefit pension plans  (including many underfunded plans), on average 62.5 percent had received  no cash contributions each year from 1995 to 2002. These plans were able  to meet minimum funding requirements through the use of accounting  credits. Compliance with the minimum funding requirements is recorded  through the plan’s funding standard account (FSA). The FSA tracks events  that affect the financial health of a plan during that plan year: credits,  which reflect improvements to the plan’s assets, such as contributions,  amortized experience gains, and interest; and charges, which reflect an  increase in the plan’s financial requirements, such as the plan’s normal  cost and amortized charges such as the initial actuarial liability,  experience losses, and increases in a plan’s benefit formula. If FSA credits  exceed charges in a given plan year, the plan’s FSA registers a net  increase. Compliance with the minimum funding standard requires that  the FSA balance at the end of the year is non-negative. An existing credit  balance accrues interest and may be drawn upon to help satisfy minimum  funding requirements for future plan years, and may offset the need for  future cash contributions. In 2006, Congress enacted the Pension  Protection Act (PPA) to address some identified deficiencies in funding  requirements. Because these changes in funding requirements are  applicable to plan years beginning after 2007, we are unable to comment  on what impact, if any, the act would have had on our case studies.
For defined benefit plans, the accrued benefit is the amount that the plan  participants would receive as a life annuity beginning at the normal  retirement age, as defined by the plan. It is determined by a plan’s benefit  formula and is recalculated annually as participants complete an  additional year of service. ERISA requires sponsors to provide information  to the federal government regarding plan benefits, summary financial  information, and funding information. Sponsors must estimate their  liabilities each year to determine whether their plans are fully funded or  underfunded, with the assumption that the sponsor will continue to  maintain the plan in its current form for the foreseeable future.
If a sponsor needs to terminate a plan, it must conduct a valuation of plan  assets and liabilities to determine whether it is fully funded. The  valuation assumes that no further benefits will accrue and no further  contributions will be made. If this valuation finds the plan to be  underfunded, the sponsor must meet certain criteria set by ERISA in order  to file a claim with PBGC. If the sponsor meets these criteria, PBGC  becomes trustee of the plan and will assume responsibility for paying  guaranteed benefits to plan participants. However, payments to an  individual beneficiary are subject to a maximum annual dollar limit, as set  in accordance with ERISA. For 2009, this limit is $54,000.

	Executives at 10 Companies Received Approximately $350 Million in Compensation

Executives at 10 companies received approximately $350 million in pay  and other benefits in the years leading up to the termination of their  companies’ underfunded pension plans. We identified the salaries,  bonuses, and benefits provided to small groups of high-ranking executives  at these companies. Executives at some companies received salaries in  excess of $10 million dollars in the years leading up to bankruptcy. We  also found that some executives at these companies received millions of  dollars combined in other financial benefits such as income tax  reimbursements, retention bonuses, severance packages, split-dollar life  insurance, and supplemental retirement plans. Along with financial  compensation received, some executives were provided other benefits  such as apartments, personal trips on company airplanes and helicopters,  club memberships, legal fee reimbursement, and automobiles. We did not  attempt to determine whether these benefits were customary. Further, for  each of the 10 selected companies, at least one executive we reviewed sat  on the company’s Board of Directors. We did not find any illegal activity  related to executive compensation on the part of either the 10 companies  or the 40 executives under review.
Table 1 shows details of our 10 case study companies where we reviewed  salaries, bonuses, and benefits paid to executives. Some companies  sponsored multiple plans which were terminated; for these companies the  details of their pension plans are presented in aggregate. Further detail on  4 of these cases follows the table.
Case 1: In September 2002, this airline hired a new CEO, who also served  as President and Chairman of the Board, to help lead the company through  potentially difficult times ahead. Three months later, the company  declared bankruptcy and did not emerge until February 2006. During  bankruptcy, the company terminated four pension plans from December  2004 to June 2005 that according to PBGC were underfunded by a total of  $7.8 billion. This airline missed or waived nearly $1 billion in required  minimum contributions. During this CEO’s tenure, through the termination  of the company’s four pension plans, the CEO and two other executives  received a total of $55.5 million in salary, benefits, and other  compensation. See table 2 below for the components of compensation  received by these three executives.
The new CEO received a $3 million signing bonus, and the company  established a supplemental retirement trust fund worth $4.5 million in his  name “in consideration of retirement benefits foregone as a result of  resignation from his former employer.” Upon the airline’s reorganization,  the COO also received $2.6 million to set up an irrevocable trust in his  name, along with a separate $100,000 in 401(k)-related payments.
All officers were given unlimited free travel on the airline or its  subsidiaries, along with a complimentary membership in the company’s  VIP travel club. The company also reimbursed its executives for any  income taxes which they might have owed on this free travel. In addition  to these travel benefits, according to the company’s Officer Benefits  Statement, executives would be reimbursed for the cost of “social and  business club memberships…where there is a benefit to be realized to the  company” and offered payments for financial advisory services.
PBGC’s takeover of these plans in such an underfunded state had  significant consequences for some of the company’s pilots, who lost large  portions of their pensions due to PBGC’s statutorily mandated benefit  caps. We spoke to several retirees, including one pilot who lost two-thirds  of his monthly pension payments when his pension plan was turned over  to PBGC. Prior to the pension termination, he had made the decision to  retire 2 years early at age 58 to spend more time at home after 35 years of  routine flights to and from Southeast Asia. He told us that he made this  decision after careful consideration of numerous retirement benefit  estimates he had received over the years from the airline. Within 2 years of  his retirement, PBGC had taken control of his plan and his benefits  payments had been reduced to a third of what he had been promised at  retirement.
Case 2: This airline went through four CEOs and two bankruptcies during  its struggle to survive in the face of considerable financial losses beginning  in 2000. During the course of its two bankruptcies (the first in August 2002  and the second in September 2004), the airline turned over four pension  plans to PBGC. It had missed or waived $206.8 million in required  minimum contributions, with a total of $2.8 billion in underfunding  reported by PBGC. The plan covering the company’s pilots was terminated  during the first bankruptcy. The remaining three plans, which covered  mechanics, flight attendants, and others, were terminated during the  company’s second bankruptcy. From 1998 to 2005, four CEOs received  over $120 million in total compensation. See table 3 below for the  components of compensation provided to these four executives.
For example, one executive received $16 million in stock and an additional  $16 million in related income tax reimbursements during his tenure as  CEO and Chairman of the Board. He also received a lump-sum payment in  excess of $14 million for his pension plan holdings at the time of his  resignation. His successor, who previously served as COO, received $1.2  million in incentive awards, as well as nearly $17 million in stock when he  was promoted to CEO, a position which he held for 3 years. At the time of  his resignation, he received over $15 million in supplemental executive  retirement benefits. Another executive, whose tenure as CEO lasted 25  months, was provided a severance package that included triple his annual  salary and bonuses plus over $1 million in payments related to a  supplemental defined contribution retirement plan.
These executives also received millions of dollars in other benefits. For  example, the airline paid the four CEOs a combined total of nearly  $500,000 for living and relocation expenses during their tenures. And, as in  case 1, the executives were provided unlimited free transportation on the  airline and were reimbursed for any income taxes incurred on such travel.
In addition, they received a lifetime benefit of membership in the airline’s  frequent flyer program, which grants unlimited free first-class travel  upgrades. They further received hundreds of thousands of dollars worth of  benefits for split-dollar life insurance, and reimbursements for financial  planning services and automobile expenses.
Case 3: In December 1995, this electronics company’s newly hired CEO  and Chairman of the Board stated it was “clear to  that the company  could achieve meaningful growth.” He announced a broad restructuring  plan to improve the company’s profitability which eventually resulted in  the termination of nearly 3,000 employees. However, the company  experienced a net loss for the next 6 years before declaring bankruptcy in  October 2001. When PBGC took over the company’s pension plan in July  2002, it was underfunded by $318 million, though the company had not  missed or waived any required contributions. See table 4 below for  components of compensation provided to three executives.
In the 5 years leading up to its bankruptcy, the company paid three of its  executives salaries totaling over $4 million and granted them bonuses  equal to more than half that amount. Further, these executives received $6  million in stock awards, along with nearly 1 million stock options. When  the Chief Financial Officer (CFO) resigned 10 months before the company  declared bankruptcy, her severance package included 2 years’ salary and  bonuses, continuation of medical benefits, and $600 thousand for her  holdings in the company’s supplemental pension plan. Soon after, the CEO  received a $1.4 million retention bonus because, according to the  company’s bankruptcy filings, “ did not want him  to have his attention distracted from the core problem of keeping the  company moving along the track and wanted him not to be worrying about  time spent or uncertainty for him and his family personally.”
These executives also were reimbursed for expenses such as foreign  taxes, rent, utilities, shipping, health club memberships, and legal advice  to help protect their interests during bankruptcy. One executive received a  $380,000 loan to help with the purchase of a new home near the company’s  headquarters. This loan and related interest were to be forgiven  completely over the course of 4 years if the executive remained employed  by the company. In addition, some executives were provided with  company car usage, along with coverage for all car-related business  expenses. The company not only provided these benefits for its  executives, but also provided additional benefits for families of executives.  One executive received thousands of dollars for his wife’s continuing  education, as well as assistance to help her purchase a new car, and  reimbursements for some of his wife and daughter’s travel.
Case 4: This insurance company and its parent company were owned and  run largely by a single family whose members served on the boards of  directors of both companies, as well as in senior officer positions such as  CEO and COO. The insurance company was taken over by its state  regulators during May 2001, resulting in the termination of its pension plan  that was underfunded by $108 million, to PBGC in February 2002. The  parent company declared bankruptcy in June 2001, soon after the takeover  of the insurance company, leaving behind a second, smaller pension plan,  underfunded by $13 million in January 2004. These two plans missed or  waived a combined $29.2 million in required minimum contributions. In  the 5 years leading up to the company’s failure, five executives received a  total of nearly $70 million in salary, bonuses, and benefits. See table 5  below for components of compensation provided to these five executives.
In the 5 years leading to the companies’ downfall, five executives received  nearly $60 million in salaries and bonuses. This figure includes nearly $20  million for the CEO and a comparable amount for his brother, who served  as the COO. According to the companies’ compensation committees,  executive compensation is meant to “establish a relationship between  compensation and the attainment of corporate objectives.” However, in 1  year, an executive failed to meet his target objectives, yet received a $1.5  million bonus “given   continued confidence that he will achieve superior results in the future.”  In addition to salaries and bonuses, the executives also received over $10  million in other benefits. The CEO received split-dollar life insurance  benefits in some years in excess of $1 million. Combined, these five  executives received nearly 12 million stock options.
The CEO and COO together received free personal travel on corporate  aircraft valued at over $200,000, as reported by the companies. We  reviewed documents provided by the companies and found extensive  personal use of corporate aircraft: a Boeing 727-100 airplane and a  Sikorsky helicopter. One executive described the plane as “nicely  appointed” with multiple rooms. From 1997-1999, we found personal trips  by the CEO, COO, and their families to China, Spain, Greece, Miami,  Hawaii, Puerto Rico, and Mexico. In addition, the CEO took over 80 trips  to his home in Quogue, N.Y. using the company’s helicopter, of which  more than 20 trips were solely for the transport of his wife and children.  Further, the CEO and COO used both the company aircraft during the  course of a family trip to Europe. Figure 1 below shows the same make  and model of the helicopter used by company executives.
In June 2002, the insurance company’s Board of Directors was sued for  breach of fiduciary duties. In the complaint against them, “excessive  compensation and preferential transfers” were cited as factors in the  company’s failure. A separate lawsuit was filed in 2003 against the  company’s COO, alleging that he had improperly received millions of  dollars in compensation. These suits were both settled for a total of $85  million in May 2005. All but one of the executives described in this case  study are currently receiving monthly pension payments from PBGC in  amounts ranging between $4,400 and $8,200.

	PBGC Has Limited Recovery Ability Regarding Executive Compensation

During our review of case studies, we noted that PBGC has little to no  oversight authority regarding executive compensation. Companies are not  required to report specific executive compensation details in financial  disclosures to PBGC prior to plan termination. Further, while many plan  terminations occur during bankruptcy, PBGC’s ability to recover payments  made to executives is limited by bankruptcy law.
Companies are required to disclose certain financial information to PBGC,  such as financial statements and projections, prior to terminating a  defined benefit pension plan. The PBGC officials we spoke with indicated  that these disclosures do not normally separate executive compensation  from general companywide salary and benefits information. They further  indicated that PBGC has no authority to demand that adjustments be made  to salaries, although general adjustments to large categories of  discretionary spending (which may include overall salaries) may be  considered during evaluations of the company’s ability to maintain a  pension plan.
During bankruptcy, PBGC has little power to recover amounts paid as  compensation to executives. Any executive compensation paid during the  course of a bankruptcy must be approved by the court, and once  approved, cannot be recovered. Like any other creditor, PBGC can object  to specific executive compensation plans, but the final decision regarding  such plans is made by the bankruptcy judge, who is responsible for  determining whether the plan is justified by the facts and circumstances of  the situation. For executive compensation paid within the 2 years prior to  a company’s bankruptcy petition, creditors have extremely limited ability  to recover some amounts, but generally only in situations where extreme  mismanagement of funds has occurred. In addition, since PBGC is  normally considered a general unsecured creditor during bankruptcy  procedures, the agency has low priority for the payment of any such  recoveries.

	Agency Comments and Our Evaluation

In written comments on a draft of this report, PBGC agreed with our  assessment that ERISA does not provide it with any oversight power  regarding payments to company executives prior to a company’s  bankruptcy. Further, PBGC agreed that it has limited power over  executive compensation during bankruptcy, as such payments are under  the purview of the bankruptcy court. We have reprinted PBGC’s written  comments in appendix II.
As agreed with your office, unless you publicly announce the contents of  this report earlier, we plan no further distribution until 30 days from the  date of this letter. We will then send copies of this report to interested  congressional committees and the Acting Director of the Pension Benefit  Guaranty Corporation. The report also will be available at no charge on  the GAO Web site at http://www.gao.gov.
For further information about this report, please contact Gregory D. Kutz  at (202) 512-6722 or kutzg@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. GAO staff who made major contributions to this report are  listed in appendix III.

Appendix I: Scope and Methodology

To determine pay and other compensation received by executives in the  years preceding their company’s termination of an underfunded defined  benefit pension plan, we first obtained a database from the Pension  Benefit Guaranty Corporation (PBGC) identifying companies that had  terminated underfunded pension plans from 1999 to 2008. This database  contained information on 1,246 terminated pension plans. We focused on  identifying companies that (1) were publicly traded prior to the  termination of their pension plan(s), (2) had significant unfunded pension  liabilities on a termination basis ($100 million or more), (3) had a high  unfunded liability per plan participant ratio ($10,000 or more per  participant), and (4) had more than 5,000 plan participants. Of the 1,246  underfunded plans terminated from 1999 to 2008, we selected 10  companies from approximately 30 companies that sponsored plans which  met our criteria. The 10 case study companies we selected were not meant  to be representative of all companies whose plans have been taken over by  PBGC in the past decade.
We requested and reviewed documents provided by selected companies  related to the compensation of their executives. We reviewed Securities  and Exchange Commission (SEC) filings and PBGC documents disclosing  plan underfunding at the time of termination and missed contributions. We  also interviewed PBGC and company officials, as well as plan participants.  In addition, we requested documentation from all selected executives  under review, including tax returns. We attempted to interview all selected  executives, but some could not be reached or declined our interview  request.
Findings related to executive pay and benefits were limited by the  availability of public documents and information voluntarily provided by  companies, executives, and other entities (e.g., professional sports teams,  golf clubs). Because some companies and executives did not provide  information, declined to be interviewed, and/or did not consent to granting  GAO access to copies of their tax returns from the Internal Revenue  Service, we were not able to document all details concerning pay and  benefits received beyond the details available in public documents or  otherwise voluntarily provided. Thus, the executive compensation  information in this report represents what we were able to determine and  may be understated. All values listed for restricted stock awards were  determined by reviewing SEC filings which list the value of stock awards  as of the date of the award, and therefore may not represent their ultimate  exercised value. We did not attempt to determine the market value of  stock options at the time of their award, nor their exercised value. We  limited our review to the time period beginning 5 years prior to a  company’s first pension plan termination and ending with the company’s  final pension plan termination. Since some companies terminated multipl pension plans over a period of time, for those companies our review  may  cover more than 5 years. Due to the high turnover of executives at thes companies, information regarding the total compensation of the  executives discussed in this report may not have been available for the  entire time period under review. We did not conduct an exhausti of each company’s executive pay and benefit practices; we reviewed  information related to executive pay and compensation in the years  preceding the termination of a defined benefit pension plan.
To assess the reliability of PBGC data related to the termination of defined  benefit pension plans from 1999 through 2008, we (1) interviewed PBGC  officials familiar with the data related to terminated pension plans and (2)  matched the data provided by PBGC for the pension plans in each case  study against records available on the agency’s Web site to verify that the  data we were provided were exported correctly. We found the data to be  sufficiently reliable to identify case studies for further investigation.
We conducted our audit and investigative work from January 2009 through  September 2009. We conducted our audit work in accordance with U.S.  generally accepted government auditing standards. Those standards  require that we plan and perform the audit to obtain sufficient, appropriate  evidence to provide a reasonable basis for our finding and conclusions  based on our audit objective. We performed our investigative work in  accordance with standards prescribed by the Council of the Inspectors  General on Integrity and Efficiency.

Appendix II: Comments from the Pension Benefit Guaranty Corporation

Appendix III: GAO Contact and Staff Acknowledgments

	GAO Contact

	Staff Acknowledgments

In addition to the contact named above, the individuals who made major  contributions to this report were Christopher Backley, Gary Bianchi,  Robert Graves, Rebecca Guerrero, Matthew Harris, Ken Hill, Leslie Kirsch,  Flavio Martinez, Vicki McClure, Jonathan Meyer, Sandra Moore, George  Ogilvie, and Barry Shillito.

Summary:
Why GAO Did This Study

When sponsors terminate underfunded plans during bankruptcy, it can deplete resources of the Pension Benefit Guaranty Corporation (PBGC), which protects the pensions of almost 44 million American workers and retirees who participate in over 29,000 defined benefit pension plans. In 2009, PBGC reported an estimated deficit of over $30 billion. GAO was asked to determine what pay and other compensation executives received in the years preceding their company's termination of an underfunded defined benefit pension plan. To identify case study examples GAO analyzed a listing of the 1,246 underfunded plans that were terminated from 1999 to 2008 and selected public companies with large unfunded liabilities, large unfunded liabilities per participant, and a large number of plan participants. GAO reviewed documents provided by companies and executives, and interviewed PBGC and company officials. GAO also reviewed Securities and Exchange Commission (SEC) filings and PBGC documents disclosing plan underfunding at the time of termination and missed contributions. Executive compensation figures may be understated because some company executives could not be located, did not respond to document requests, declined interviews, and did not give GAO access to their tax records.

What GAO Found

GAO found that 40 executives for 10 companies received approximately $350 million in pay and other compensation in the years leading up to the termination of their companies' underfunded pension plans. GAO identified salaries, bonuses, and benefits provided to small groups of high-ranking executives at these companies during the 5 years leading up to the termination of their pension plans. For example, beyond the tens of millions in base salaries received, GAO found that executives also received millions of dollars in stock awards, income tax reimbursements, retention bonuses, severance packages, and supplemental executive-only retirement plans. In some cases, plan participants had their benefits reduced due to the underfunding of the plan when it was terminated. For example, a retired pilot saw his monthly pension payment reduced by two-thirds. The reduction in benefits occurred because federal law caps the benefits PBGC can guarantee when it takes over an underfunded pension plan. In addition, PBGC has no oversight power with regard to executive compensation prior to a company's bankruptcy. During bankruptcy, executive compensation must be approved by the bankruptcy court, and after this approval PBGC has extremely limited ability to recover those payments to executives. GAO did not find any illegal activity with respect to executive compensation on the part of either the 10 companies or the 40 executives under review.