II 

112TH CONGRESS 

2D SESSION S. 3381 

To amend title 11, United States Code, to improve protections for employees 

and retirees in business bankruptcies. 

IN THE SENATE OF THE UNITED STATES 

JULY 12, 2012 

Mr. DURBIN (for himself, Mr. FRANKEN, Mr. HARKIN, Mr. WHITEHOUSE, 

and Mr. BROWN of Ohio) introduced the following bill; which was read 

twice and referred to the Committee on the Judiciary 

A BILL 

To amend title 11, United States Code, to improve protections for employees and retirees in business bankruptcies. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE; TABLE OF CONTENTS. 

4 (a) SHORT TITLE.—This Act may be cited as the 

5 ‘‘Protecting Employees and Retirees in Business Bank6 ruptcies Act of 2012’’. 

7 (b) TABLE OF CONTENTS.—The table of contents of 

8 this Act is as follows: 

Sec. 1. Short title; table of contents. 

Sec. 2. Findings. 


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TITLE I—IMPROVING RECOVERIES FOR EMPLOYEES AND 

RETIREES 

Sec. 101. Increased wage priority. 

Sec. 102. Claim for stock value losses in defined contribution plans. 

Sec. 103. Priority for severance pay. 

Sec. 104. Financial returns for employees and retirees. 

Sec. 105. Priority for WARN Act damages. 

TITLE II—REDUCING EMPLOYEES’ AND RETIREES’ LOSSES 

Sec. 201. Rejection of collective bargaining agreements. 

Sec. 202. Payment of insurance benefits to retired employees. 

Sec. 203. Protection of employee benefits in a sale of assets. 

Sec. 204. Claim for pension losses. 

Sec. 205. Payments by secured lender. 

Sec. 206. Preservation of jobs and benefits. 

Sec. 207. Termination of exclusivity. 

Sec. 208. Claim for withdrawal liability. 

TITLE III—RESTRICTING EXECUTIVE COMPENSATION PROGRAMS 

Sec. 301. Executive compensation upon exit from bankruptcy. 

Sec. 302. Limitations on executive compensation enhancements. 

Sec. 303. Assumption of executive benefit plans. 

Sec. 304. Recovery of executive compensation. 

Sec. 305. Preferential compensation transfer. 

TITLE IV—OTHER PROVISIONS 

Sec. 401. Union proof of claim. 

Sec. 402. Exception from automatic stay. 

1 SEC. 2. FINDINGS. 

2 The Congress finds the following: 

3 (1) Business bankruptcies have increased 

4 sharply in recent years and remain at high levels. 

5 These bankruptcies include several of the largest 

6 business bankruptcy filings in history. As the use of 

7 bankruptcy has expanded, job preservation and re8 tirement security are placed at greater risk. 

9 (2) Laws enacted to improve recoveries for em10 ployees and retirees and limit their losses in bank11 ruptcy cases have not kept pace with the increasing 


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1 and broader use of bankruptcy by businesses in all 

2 sectors of the economy. However, while protections 

3 for employees and retirees in bankruptcy cases have 

4 eroded, management compensation plans devised for 

5 those in charge of troubled businesses have become 

6 more prevalent and are escaping adequate scrutiny. 

7 (3) Changes in the law regarding these matters 

8 are urgently needed as bankruptcy is used to ad9 dress increasingly more complex and diverse condi10 tions affecting troubled businesses and industries. 

11 TITLE I—IMPROVING RECOV12 ERIES FOR EMPLOYEES AND 

13 RETIREES 

14 SEC. 101. INCREASED WAGE PRIORITY. 

15 Section 507(a) of title 11, United States Code, is 

16 amended— 

17 (1) in paragraph (4)— 

18 (A) by striking ‘‘$10,000’’ and inserting 

19 ‘‘$20,000’’; 

20 (B) by striking ‘‘within 180 days’’; and 

21 (C) by striking ‘‘or the date of the ces22 sation of the debtor’s business, whichever oc23 curs first,’’; 

24 (2) in paragraph (5)(A), by striking— 

25 (A) ‘‘within 180 days’’; and 


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1 (B) ‘‘or the date of the cessation of the 

2 debtor’s business, whichever occurs first’’; and 

3 (3) in paragraph (5), by striking subparagraph 

4 (B) and inserting the following: 

5 ‘‘(B) for each such plan, to the extent of 

6 the number of employees covered by each such 

7 plan, multiplied by $20,000.’’. 

8 SEC. 102. CLAIM FOR STOCK VALUE LOSSES IN DEFINED 

9 CONTRIBUTION PLANS. 

10 Section 101(5) of title 11, United States Code, is 

11 amended— 

12 (1) in subparagraph (A), by striking ‘‘or’’ at 

13 the end; 

14 (2) in subparagraph (B), by inserting ‘‘or’’ 

15 after the semicolon; and 

16 (3) by adding at the end the following: 

17 ‘‘(C) right or interest in equity securities 

18 of the debtor, or an affiliate of the debtor, held 

19 in a defined contribution plan (within the mean20 ing of section 3(34) of the Employee Retire21 ment Income Security Act of 1974 (29 U.S.C. 

22 1002(34))) for the benefit of an individual who 

23 is not an insider, a senior executive officer, or 

24 any of the 20 next most highly compensated 

25 employees of the debtor (if 1 or more are not 


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1 insiders), if such securities were attributable to 

2 either employer contributions by the debtor or 

3 an affiliate of the debtor, or elective deferrals 

4 (within the meaning of section 402(g) of the In5 ternal Revenue Code of 1986), and any earn6 ings thereon, if an employer or plan sponsor 

7 who has commenced a case under this title has 

8 committed fraud with respect to such plan or 

9 has otherwise breached a duty to the partici10 pant that has proximately caused the loss of 

11 value.’’. 

12 SEC. 103. PRIORITY FOR SEVERANCE PAY. 

13 Section 503(b) of title 11, United States Code, is 

14 amended— 

15 (1) in paragraph (8), by striking ‘‘and’’ at the 

16 end; 

17 (2) in paragraph (9), by striking the period and 

18 inserting a semicolon; and 

19 (3) by adding at the end the following: 

20 ‘‘(10) severance pay owed to employees of the 

21 debtor (other than to an insider, other senior man22 agement, or a consultant retained to provide services 

23 to the debtor), under a plan, program, or policy gen24 erally applicable to employees of the debtor (but not 

25 under an individual contract of employment), or 


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1 owed pursuant to a collective bargaining agreement, 

2 for layoff or termination on or after the date of the 

3 filing of the petition, which pay shall be deemed 

4 earned in full upon such layoff or termination of em5 ployment; and’’. 

6 SEC. 104. FINANCIAL RETURNS FOR EMPLOYEES AND RE7 TIREES. 

8 Section 1129(a) of title 11, United States Code is 

9 amended— 

10 (1) by adding at the end the following: 

11 ‘‘(17) The plan provides for recovery of dam12 ages payable for the rejection of a collective bar13 gaining agreement, or for other financial returns as 

14 negotiated by the debtor and the authorized rep15 resentative under section 1113 (to the extent that 

16 such returns are paid under, rather than outside of, 

17 a plan).’’; and 

18 (2) by striking paragraph (13) and inserting 

19 the following: 

20 ‘‘(13) With respect to retiree benefits, as that 

21 term is defined in section 1114(a), the plan— 

22 ‘‘(A) provides for the continuation after its 

23 effective date of payment of all retiree benefits 

24 at the level established pursuant to subsection 

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1 fore the date of confirmation of the plan, for 

2 the duration of the period for which the debtor 

3 has obligated itself to provide such benefits, or 

4 if no modifications are made before confirma5 tion of the plan, the continuation of all such re6 tiree benefits maintained or established in whole 

7 or in part by the debtor before the date of the 

8 filing of the petition; and 

9 ‘‘(B) provides for recovery of claims arising 

10 from the modification of retiree benefits or for 

11 other financial returns, as negotiated by the 

12 debtor and the authorized representative (to the 

13 extent that such returns are paid under, rather 

14 than outside of, a plan).’’. 

15 SEC. 105. PRIORITY FOR WARN ACT DAMAGES. 

16 Section 503(b)(1)(A)(ii) of title 11, United States 

17 Code is amended to read as follows: 

18 ‘‘(ii) wages and benefits awarded pur19 suant to a judicial proceeding or a pro20 ceeding of the National Labor Relations 

21 Board as back pay or damages attributable 

22 to any period of time occurring after the 

23 date of commencement of the case under 

24 this title, as a result of a violation of Fed25 eral or State law by the debtor, without reVerDate Mar 15 2010 02:19 Jul 13, 2012 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\S3381.IS S3381

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1 gard to the time of the occurrence of un2 lawful conduct on which the award is 

3 based or to whether any services were ren4 dered on or after the commencement of the 

5 case, including an award by a court under 

6 section 2901 of title 29, United States 

7 Code, of up to 60 days’ pay and benefits 

8 following a layoff that occurred or com9 menced at a time when such award period 

10 includes a period on or after the com11 mencement of the case, if the court deter12 mines that payment of wages and benefits 

13 by reason of the operation of this clause 

14 will not substantially increase the prob15 ability of layoff or termination of current 

16 employees or of nonpayment of domestic 

17 support obligations during the case under 

18 this title.’’. 

19 TITLE II—REDUCING EMPLOY20 EES’ AND RETIREES’ LOSSES 

21 SEC. 201. REJECTION OF COLLECTIVE BARGAINING AGREE22 MENTS. 

23 Section 1113 of title 11, United States Code, is 

24 amended by striking subsections (a) through (f) and in25 serting the following: 


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1 ‘‘(a) The debtor in possession, or the trustee if one 

2 has been appointed under this chapter, other than a trust3 ee in a case covered by subchapter IV of this chapter and 

4 by title I of the Railway Labor Act, may reject a collective 

5 bargaining agreement only in accordance with this section. 

6 Hereinafter in this section, a reference to the trustee in7 cludes a reference to the debtor in possession. 

8 ‘‘(b) No provision of this title shall be construed to 

9 permit the trustee to unilaterally terminate or alter any 

10 provision of a collective bargaining agreement before com11 plying with this section. The trustee shall timely pay all 

12 monetary obligations arising under the terms of the collec13 tive bargaining agreement. Any such payment required to 

14 be made before a plan confirmed under section 1129 is 

15 effective has the status of an allowed administrative ex16 pense under section 503. 

17 ‘‘(c)(1) If the trustee seeks modification of a collec18 tive bargaining agreement, then the trustee shall provide 

19 notice to the labor organization representing the employ20 ees covered by the agreement that modifications are being 

21 proposed under this section, and shall promptly provide 

22 an initial proposal for modifications to the agreement. 

23 Thereafter, the trustee shall confer in good faith with the 

24 labor organization, at reasonable times and for a reason25 able period in light of the complexity of the case, in atVerDate Mar 15 2010 02:19 Jul 13, 2012 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\S3381.IS S3381

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1 tempting to reach mutually acceptable modifications of 

2 such agreement. 

3 ‘‘(2) The initial proposal and subsequent proposals 

4 by the trustee for modification of a collective bargaining 

5 agreement shall be based upon a business plan for the re6 organization of the debtor, and shall reflect the most com7 plete and reliable information available. The trustee shall 

8 provide to the labor organization all information that is 

9 relevant for negotiations. The court may enter a protective 

10 order to prevent the disclosure of information if disclosure 

11 could compromise the debtor’s position with respect to its 

12 competitors in the industry, subject to the needs of the 

13 labor organization to evaluate the trustee’s proposals and 

14 any application for rejection of the agreement or for in15 terim relief pursuant to this section. 

16 ‘‘(3) In consideration of Federal policy encouraging 

17 the practice and process of collective bargaining and in 

18 recognition of the bargained-for expectations of the em19 ployees covered by the agreement, modifications proposed 

20 by the trustee— 

21 ‘‘(A) shall be proposed only as part of a pro22 gram of workforce and nonworkforce cost savings 

23 devised for the reorganization of the debtor, includ24 ing savings in management personnel costs; 


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1 ‘‘(B) shall be limited to modifications designed 

2 to achieve a specified aggregate financial contribu3 tion for the employees covered by the agreement 

4 (taking into consideration any labor cost savings ne5 gotiated within the 12-month period before the filing 

6 of the petition), and shall be not more than the min7 imum savings essential to permit the debtor to exit 

8 bankruptcy, such that confirmation of a plan of re9 organization is not likely to be followed by the liq10 uidation, or the need for further financial reorga11 nization, of the debtor (or any successor to the debt12 or) in the short term; and 

13 ‘‘(C) shall not be disproportionate or overly bur14 den the employees covered by the agreement, either 

15 in the amount of the cost savings sought from such 

16 employees or the nature of the modifications. 

17 ‘‘(d)(1) If, after a period of negotiations, the trustee 

18 and the labor organization have not reached an agreement 

19 over mutually satisfactory modifications, and further ne20 gotiations are not likely to produce mutually satisfactory 

21 modifications, the trustee may file a motion seeking rejec22 tion of the collective bargaining agreement after notice 

23 and a hearing. Absent agreement of the parties, no such 

24 hearing shall be held before the expiration of the 21-day 

25 period beginning on the date on which notice of the hearVerDate Mar 15 2010 02:19 Jul 13, 2012 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\S3381.IS S3381

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1 ing is provided to the labor organization representing the 

2 employees covered by the agreement. Only the debtor and 

3 the labor organization may appear and be heard at such 

4 hearing. An application for rejection shall seek rejection 

5 effective upon the entry of an order granting the relief. 

6 ‘‘(2) In consideration of Federal policy encouraging 

7 the practice and process of collective bargaining and in 

8 recognition of the bargained-for expectations of the em9 ployees covered by the agreement, the court may grant a 

10 motion seeking rejection of a collective bargaining agree11 ment only if, based on clear and convincing evidence— 

12 ‘‘(A) the court finds that the trustee has com13 plied with the requirements of subsection (c); 

14 ‘‘(B) the court has considered alternative pro15 posals by the labor organization and has concluded 

16 that such proposals do not meet the requirements of 

17 paragraph (3)(B) of subsection (c); 

18 ‘‘(C) the court finds that further negotiations 

19 regarding the trustee’s proposal or an alternative 

20 proposal by the labor organization are not likely to 

21 produce an agreement; 

22 ‘‘(D) the court finds that implementation of the 

23 trustee’s proposal shall not— 


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1 ‘‘(i) cause a material diminution in the 

2 purchasing power of the employees covered by 

3 the agreement; 

4 ‘‘(ii) adversely affect the ability of the 

5 debtor to retain an experienced and qualified 

6 workforce; or 

7 ‘‘(iii) impair the debtor’s labor relations 

8 such that the ability to achieve a feasible reor9 ganization would be compromised; and 

10 ‘‘(E) the court concludes that rejection of the 

11 agreement and immediate implementation of the 

12 trustee’s proposal is essential to permit the debtor to 

13 exit bankruptcy, such that confirmation of a plan of 

14 reorganization is not likely to be followed by liquida15 tion, or the need for further financial reorganization, 

16 of the debtor (or any successor to the debtor) in the 

17 short term. 

18 ‘‘(3) If the trustee has implemented a program of in19 centive pay, bonuses, or other financial returns for insid20 ers, senior executive officers, or the 20 next most highly 

21 compensated employees or consultants providing services 

22 to the debtor during the bankruptcy, or such a program 

23 was implemented within 180 days before the date of the 

24 filing of the petition, the court shall presume that the 


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1 trustee has failed to satisfy the requirements of subsection 

2 (c)(3)(C). 

3 ‘‘(4) In no case shall the court enter an order reject4 ing a collective bargaining agreement that would result in 

5 modifications to a level lower than the level proposed by 

6 the trustee in the proposal found by the court to have com7 plied with the requirements of this section. 

8 ‘‘(5) At any time after the date on which an order 

9 rejecting a collective bargaining agreement is entered, or 

10 in the case of an agreement entered into between the 

11 trustee and the labor organization providing mutually sat12 isfactory modifications, at any time after such agreement 

13 has been entered into, the labor organization may apply 

14 to the court for an order seeking an increase in the level 

15 of wages or benefits, or relief from working conditions, 

16 based upon changed circumstances. The court shall grant 

17 the request only if the increase or other relief is not incon18 sistent with the standard set forth in paragraph (2)(E). 

19 ‘‘(e) During a period in which a collective bargaining 

20 agreement at issue under this section continues in effect, 

21 and if essential to the continuation of the debtor’s busi22 ness or in order to avoid irreparable damage to the estate, 

23 the court, after notice and a hearing, may authorize the 

24 trustee to implement interim changes in the terms, condi25 tions, wages, benefits, or work rules provided by the collecVerDate Mar 15 2010 02:19 Jul 13, 2012 Jkt 019200 PO 00000 Frm 00014 Fmt 6652 Sfmt 6201 E:\BILLS\S3381.IS S3381

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1 tive bargaining agreement. Any hearing under this sub2 section shall be scheduled in accordance with the needs 

3 of the trustee. The implementation of such interim 

4 changes shall not render the application for rejection 

5 moot. 

6 ‘‘(f) Rejection of a collective bargaining agreement 

7 constitutes a breach of the agreement, and shall be effec8 tive no earlier than the entry of an order granting such 

9 relief. Notwithstanding the foregoing, solely for purposes 

10 of determining and allowing a claim arising from the rejec11 tion of a collective bargaining agreement, rejection shall 

12 be treated as rejection of an executory contract under sec13 tion 365(g) and shall be allowed or disallowed in accord14 ance with section 502(g)(1). No claim for rejection dam15 ages shall be limited by section 502(b)(7). Economic self16 help by a labor organization shall be permitted upon a 

17 court order granting a motion to reject a collective bar18 gaining agreement under subsection (d) or pursuant to 

19 subsection (e), and no provision of this title or of any other 

20 provision of Federal or State law may be construed to the 

21 contrary. 

22 ‘‘(g) The trustee shall provide for the reasonable fees 

23 and costs incurred by a labor organization under this sec24 tion, upon request and after notice and a hearing. 


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1 ‘‘(h) A collective bargaining agreement that is as2 sumed shall be assumed in accordance with section 365.’’. 

3 SEC. 202. PAYMENT OF INSURANCE BENEFITS TO RETIRED 

4 EMPLOYEES. 

5 Section 1114 of title 11, United States Code, is 

6 amended— 

7 (1) in subsection (a), by inserting ‘‘, whether or 

8 not the debtor asserts a right to unilaterally modify 

9 such payments under such plan, fund, or program’’ 

10 before the period at the end; 

11 (2) in subsection (b)(2), by inserting after ‘‘sec12 tion’’ the following: ‘‘, and a labor organization serv13 ing as the authorized representative under sub14 section (c)(1),’’; 

15 (3) in subsection (f), by striking ‘‘(f)’’ and all 

16 that follows through paragraph (2) and inserting the 

17 following: 

18 ‘‘(f)(1) If a trustee seeks modification of retiree bene19 fits, then the trustee shall provide a notice to the author20 ized representative that modifications are being proposed 

21 pursuant to this section, and shall promptly provide an 

22 initial proposal. Thereafter, the trustee shall confer in 

23 good faith with the authorized representative at reason24 able times and for a reasonable period in light of the comVerDate Mar 15 2010 02:19 Jul 13, 2012 Jkt 019200 PO 00000 Frm 00016 Fmt 6652 Sfmt 6201 E:\BILLS\S3381.IS S3381

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1 plexity of the case in attempting to reach mutually satis2 factory modifications. 

3 ‘‘(2) The initial proposal and subsequent proposals 

4 by the trustee shall be based upon a business plan for the 

5 reorganization of the debtor and shall reflect the most 

6 complete and reliable information available. The trustee 

7 shall provide to the authorized representative all informa8 tion that is relevant for the negotiations. The court may 

9 enter a protective order to prevent the disclosure of infor10 mation if disclosure could compromise the debtor’s posi11 tion with respect to its competitors in the industry, subject 

12 to the needs of the authorized representative to evaluate 

13 the trustee’s proposals and an application pursuant to 

14 subsection (g) or (h). 

15 ‘‘(3) Modifications proposed by the trustee— 

16 ‘‘(A) shall be proposed only as part of a pro17 gram of workforce and nonworkforce cost savings 

18 devised for the reorganization of the debtor, includ19 ing savings in management personnel costs; 

20 ‘‘(B) shall be limited to modifications that are 

21 designed to achieve a specified aggregate financial 

22 contribution for the retiree group represented by the 

23 authorized representative (taking into consideration 

24 any cost savings implemented within the 12-month 

25 period before the date of filing of the petition with 


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1 respect to the retiree group), and shall be no more 

2 than the minimum savings essential to permit the 

3 debtor to exit bankruptcy, such that confirmation of 

4 a plan of reorganization is not likely to be followed 

5 by the liquidation, or the need for further financial 

6 reorganization, of the debtor (or any successor to 

7 the debtor) in the short term; and 

8 ‘‘(C) shall not be disproportionate or overly bur9 den the retiree group, either in the amount of the 

10 cost savings sought from such group or the nature 

11 of the modifications.’’; 

12 (4) in subsection (g)— 

13 (A) by striking ‘‘(g)’’ and all that follows 

14 through the semicolon at the end of paragraph 

15 (3) and inserting the following: 

16 ‘‘(g)(1) If, after a period of negotiations, the trustee 

17 and the authorized representative have not reached agree18 ment over mutually satisfactory modifications and further 

19 negotiations are not likely to produce mutually satisfac20 tory modifications, then the trustee may file a motion 

21 seeking modifications in the payment of retiree benefits 

22 after notice and a hearing. Absent agreement of the par23 ties, no such hearing shall be held before the expiration 

24 of the 21-day period beginning on the date on which notice 

25 of the hearing is provided to the authorized representative. 


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1 Only the debtor and the authorized representative may ap2 pear and be heard at such hearing. 

3 ‘‘(2) The court may grant a motion to modify the 

4 payment of retiree benefits only if, based on clear and con5 vincing evidence— 

6 ‘‘(A) the court finds that the trustee has com7 plied with the requirements of subsection (f); 

8 ‘‘(B) the court has considered alternative pro9 posals by the authorized representative and has de10 termined that such proposals do not meet the re11 quirements of subsection (f)(3)(B); 

12 ‘‘(C) the court finds that further negotiations 

13 regarding the trustee’s proposal or an alternative 

14 proposal by the authorized representative are not 

15 likely to produce a mutually satisfactory agreement; 

16 ‘‘(D) the court finds that implementation of the 

17 proposal shall not cause irreparable harm to the af18 fected retirees; and 

19 ‘‘(E) the court concludes that an order granting 

20 the motion and immediate implementation of the 

21 trustee’s proposal is essential to permit the debtor to 

22 exit bankruptcy, such that confirmation of a plan of 

23 reorganization is not likely to be followed by liquida24 tion, or the need for further financial reorganization, 


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1 of the debtor (or a successor to the debtor) in the 

2 short term. 

3 ‘‘(3) If a trustee has implemented a program of in4 centive pay, bonuses, or other financial returns for insid5 ers, senior executive officers, or the 20 next most highly 

6 compensated employees or consultants providing services 

7 to the debtor during the bankruptcy, or such a program 

8 was implemented within 180 days before the date of the 

9 filing of the petition, the court shall presume that the 

10 trustee has failed to satisfy the requirements of subpara11 graph (f)(3)(C).’’; and 

12 (B) by striking ‘‘except that in no case’’ 

13 and inserting the following: 

14 ‘‘(4) In no case’’; and 

15 (5) by striking subsection (k) and redesignating 

16 subsections (l) and (m) as subsections (k) and (l), 

17 respectively. 

18 SEC. 203. PROTECTION OF EMPLOYEE BENEFITS IN A SALE 

19 OF ASSETS. 

20 Section 363(b) of title 11, United States Code, is 

21 amended by adding at the end the following: 

22 ‘‘(3) In approving a sale under this subsection, the 

23 court shall consider the extent to which a bidder has of24 fered to maintain existing jobs, preserve terms and condi25 tions of employment, and assume or match pension and 


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1 retiree health benefit obligations in determining whether 

2 an offer constitutes the highest or best offer for such prop3 erty.’’. 

4 SEC. 204. CLAIM FOR PENSION LOSSES. 

5 Section 502 of title 11, United States Code, is 

6 amended by adding at the end the following: 

7 ‘‘(l) The court shall allow a claim asserted by an ac8 tive or retired participant, or by a labor organization rep9 resenting such participants, in a defined benefit plan ter10 minated under section 4041 or 4042 of the Employee Re11 tirement Income Security Act of 1974, for any shortfall 

12 in pension benefits accrued as of the effective date of the 

13 termination of such pension plan as a result of the termi14 nation of the plan and limitations upon the payment of 

15 benefits imposed pursuant to section 4022 of such Act, 

16 notwithstanding any claim asserted and collected by the 

17 Pension Benefit Guaranty Corporation with respect to 

18 such termination. 

19 ‘‘(m) The court shall allow a claim of a kind described 

20 in section 101(5)(C) by an active or retired participant 

21 in a defined contribution plan (within the meaning of sec22 tion 3(34) of the Employee Retirement Income Security 

23 Act of 1974 (29 U.S.C. 1002(34))), or by a labor organi24 zation representing such participants. The amount of such 

25 claim shall be measured by the market value of the stock 


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1 at the time of contribution to, or purchase by, the plan 

2 and the value as of the commencement of the case.’’. 

3 SEC. 205. PAYMENTS BY SECURED LENDER. 

4 Section 506(c) of title 11, United States Code, is 

5 amended by adding at the end the following: ‘‘If employees 

6 have not received wages, accrued vacation, severance, or 

7 other benefits owed under the policies and practices of the 

8 debtor, or pursuant to the terms of a collective bargaining 

9 agreement, for services rendered on and after the date of 

10 the commencement of the case, then such unpaid obliga11 tions shall be deemed necessary costs and expenses of pre12 serving, or disposing of, property securing an allowed se13 cured claim and shall be recovered even if the trustee has 

14 otherwise waived the provisions of this subsection under 

15 an agreement with the holder of the allowed secured claim 

16 or a successor or predecessor in interest.’’. 

17 SEC. 206. PRESERVATION OF JOBS AND BENEFITS. 

18 Title 11, United States Code, is amended— 

19 (1) by inserting before section 1101 the fol20 lowing: 

21 ‘‘SEC. 1100. STATEMENT OF PURPOSE. 

22 ‘‘A debtor commencing a case under this chapter 

23 shall have as its principal purpose the reorganization of 

24 its business to preserve going concern value to the max25 imum extent possible through the productive use of its asVerDate Mar 15 2010 02:19 Jul 13, 2012 Jkt 019200 PO 00000 Frm 00022 Fmt 6652 Sfmt 6201 E:\BILLS\S3381.IS S3381

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1 sets and the preservation of jobs that will sustain produc2 tive economic activity.’’; 

3 (2) in section 1129(a), as amended by section 

4 104, by adding at the end the following: 

5 ‘‘(18) The debtor has demonstrated that the re6 organization preserves going concern value to the 

7 maximum extent possible through the productive use 

8 of the debtor’s assets and preserves jobs that sustain 

9 productive economic activity.’’; 

10 (3) in section 1129(c), by striking the last sen11 tence and inserting the following: ‘‘If the require12 ments of subsections (a) and (b) are met with re13 spect to more than 1 plan, the court shall, in deter14 mining which plan to confirm— 

15 ‘‘(1) consider the extent to which each plan 

16 would preserve going concern value through the pro17 ductive use of the debtor’s assets and the preserva18 tion of jobs that sustain productive economic activ19 ity; and 

20 ‘‘(2) confirm the plan that better serves such 

21 interests. 

22 A plan that incorporates the terms of a settlement with 

23 a labor organization representing employees of the debtor 

24 shall presumptively constitute the plan that satisfies this 

25 subsection.’’; and 


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1 (4) in the table of sections for chapter 11, by 

2 inserting the following before the item relating to 

3 section 1101: 

‘‘1100. Statement of purpose.’’. 

4 SEC. 207. TERMINATION OF EXCLUSIVITY. 

5 Section 1121(d) of title 11, United States Code, is 

6 amended by adding at the end the following: 

7 ‘‘(3) For purposes of this subsection, cause for reduc8 ing the 120-day period or the 180-day period includes the 

9 following: 

10 ‘‘(A) The filing of a motion pursuant to section 

11 1113 seeking rejection of a collective bargaining 

12 agreement if a plan based upon an alternative pro13 posal by the labor organization is reasonably likely 

14 to be confirmed within a reasonable time. 

15 ‘‘(B) The proposed filing of a plan by a pro16 ponent other than the debtor, which incorporates the 

17 terms of a settlement with a labor organization if 

18 such plan is reasonably likely to be confirmed within 

19 a reasonable time.’’. 

20 SEC. 208. CLAIM FOR WITHDRAWAL LIABILITY. 

21 Section 503(b) of title 11, United States Code, as 

22 amended by section 103 of this Act, is amended by adding 

23 at the end the following: 

24 ‘‘(11) with respect to withdrawal liability owed 

25 to a multiemployer pension plan for a complete or 


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1 partial withdrawal pursuant to section 4201 of the 

2 Employee Retirement Income Security Act of 1974 

3 (29 U.S.C. 1381) where such withdrawal occurs on 

4 or after the commencement of the case, an amount 

5 equal to the amount of vested benefits payable from 

6 such pension plan that accrued as a result of em7 ployees’ services rendered to the debtor during the 

8 period beginning on the date of commencement of 

9 the case and ending on the date of the withdrawal 

10 from the plan.’’. 

11 TITLE III—RESTRICTING EXECU12 TIVE COMPENSATION PRO13 GRAMS 

14 SEC. 301. EXECUTIVE COMPENSATION UPON EXIT FROM 

15 BANKRUPTCY. 

16 Section 1129(a) of title 11, United States Code, is 

17 amended— 

18 (1) in paragraph (4), by adding at the end the 

19 following: ‘‘Except for compensation subject to re20 view under paragraph (5), payments or other dis21 tributions under the plan to or for the benefit of in22 siders, senior executive officers, and any of the 20 

23 next most highly compensated employees or consult24 ants providing services to the debtor, shall not be 

25 approved except as part of a program of payments 


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1 or distributions generally applicable to employees of 

2 the debtor, and only to the extent that the court de3 termines that such payments are not excessive or 

4 disproportionate compared to distributions to the 

5 debtor’s nonmanagement workforce.’’; and 

6 (2) in paragraph (5)— 

7 (A) in subparagraph (A)(ii), by striking 

8 ‘‘and’’ at the end; and 

9 (B) in subparagraph (B), by striking the 

10 period at the end and inserting the following: ‘‘; 

11 and 

12 ‘‘(C) the compensation disclosed pursuant 

13 to subparagraph (B) has been approved by, or 

14 is subject to the approval of, the court as rea15 sonable when compared to individuals holding 

16 comparable positions at comparable companies 

17 in the same industry and not disproportionate 

18 in light of economic concessions by the debtor’s 

19 nonmanagement workforce during the case.’’. 

20 SEC. 302. LIMITATIONS ON EXECUTIVE COMPENSATION EN21 HANCEMENTS. 

22 Section 503(c) of title 11, United States Code, is 

23 amended— 

24 (1) in paragraph (1)— 


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1 (A) by inserting ‘‘, a senior executive offi2 cer, or any of the 20 next most highly com3 pensated employees or consultants’’ after ‘‘an 

4 insider’’; 

5 (B) by inserting ‘‘or for the payment of 

6 performance or incentive compensation, or a 

7 bonus of any kind, or other financial returns 

8 designed to replace or enhance incentive, stock, 

9 or other compensation in effect before the date 

10 of the commencement of the case,’’ after ‘‘re11 main with the debtor’s business,’’; and 

12 (C) by inserting ‘‘clear and convincing’’ be13 fore ‘‘evidence in the record’’; and 

14 (2) by amending paragraph (3) to read as fol15 lows: 

16 ‘‘(3) other transfers or obligations, to or for the 

17 benefit of insiders, senior executive officers, man18 agers, or consultants providing services to the debt19 or, in the absence of a finding by the court, based 

20 upon clear and convincing evidence, and without def21 erence to the debtor’s request for such payments, 

22 that such transfers or obligations are essential to the 

23 survival of the debtor’s business or (in the case of 

24 a liquidation of some or all of the debtor’s assets) 

25 essential to the orderly liquidation and maximization 


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1 of value of the assets of the debtor, in either case, 

2 because of the essential nature of the services pro3 vided, and then only to the extent that the court 

4 finds such transfers or obligations are reasonable 

5 compared to individuals holding comparable posi6 tions at comparable companies in the same industry 

7 and not disproportionate in light of economic conces8 sions by the debtor’s nonmanagement workforce dur9 ing the case.’’. 

10 SEC. 303. ASSUMPTION OF EXECUTIVE BENEFIT PLANS. 

11 Section 365 of title 11, United States Code, is 

12 amended— 

13 (1) in subsection (a), by striking ‘‘and (d)’’ and 

14 inserting ‘‘(d), (q), and (r)’’; and 

15 (2) by adding at the end the following: 

16 ‘‘(q) No deferred compensation arrangement for the 

17 benefit of insiders, senior executive officers, or any of the 

18 20 next most highly compensated employees of the debtor 

19 shall be assumed if a defined benefit plan for employees 

20 of the debtor has been terminated pursuant to section 

21 4041 or 4042 of the Employee Retirement Income Secu22 rity Act of 1974, on or after the date of the commence23 ment of the case or within 180 days before the date of 

24 the commencement of the case. 


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1 ‘‘(r) No plan, fund, program, or contract to provide 

2 retiree benefits for insiders, senior executive officers, or 

3 any of the 20 next most highly compensated employees 

4 of the debtor shall be assumed if the debtor has obtained 

5 relief under subsection (g) or (h) of section 1114 to impose 

6 reductions in retiree benefits or under subsection (d) or 

7 (e) of section 1113 to impose reductions in the health ben8 efits of active employees of the debtor, or reduced or elimi9 nated health benefits for active or retired employees within 

10 180 days before the date of the commencement of the 

11 case.’’. 

12 SEC. 304. RECOVERY OF EXECUTIVE COMPENSATION. 

13 Title 11, United States Code, is amended by inserting 

14 after section 562 the following: 

15 ‘‘SEC. 563. RECOVERY OF EXECUTIVE COMPENSATION. 

16 ‘‘(a) If a debtor has obtained relief under subsection 

17 (d) of section 1113, or subsection (g) of section 1114, by 

18 which the debtor reduces the cost of its obligations under 

19 a collective bargaining agreement or a plan, fund, or pro20 gram for retiree benefits as defined in section 1114(a), 

21 the court, in granting relief, shall determine the percent22 age diminution in the value of the obligations when com23 pared to the debtor’s obligations under the collective bar24 gaining agreement, or with respect to retiree benefits, as 

25 of the date of the commencement of the case under this 


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1 title before granting such relief. In making its determina2 tion, the court shall include reductions in benefits, if any, 

3 as a result of the termination pursuant to section 4041 

4 or 4042 of the Employee Retirement Income Security Act 

5 of 1974, of a defined benefit plan administered by the 

6 debtor, or for which the debtor is a contributing employer, 

7 effective at any time on or after 180 days before the date 

8 of the commencement of a case under this title. The court 

9 shall not take into account pension benefits paid or pay10 able under such Act as a result of any such termination. 

11 ‘‘(b) If a defined benefit pension plan administered 

12 by the debtor, or for which the debtor is a contributing 

13 employer, has been terminated pursuant to section 4041 

14 or 4042 of the Employee Retirement Income Security Act 

15 of 1974, effective at any time on or after 180 days before 

16 the date of the commencement of a case under this title, 

17 but a debtor has not obtained relief under subsection (d) 

18 of section 1113, or subsection (g) of section 1114, then 

19 the court, upon motion of a party in interest, shall deter20 mine the percentage diminution in the value of benefit ob21 ligations when compared to the total benefit liabilities be22 fore such termination. The court shall not take into ac23 count pension benefits paid or payable under title IV of 

24 the Employee Retirement Income Security Act of 1974 as 

25 a result of any such termination. 


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1 ‘‘(c) Upon the determination of the percentage dimi2 nution in value under subsection (a) or (b), the estate shall 

3 have a claim for the return of the same percentage of the 

4 compensation paid, directly or indirectly (including any 

5 transfer to a self-settled trust or similar device, or to a 

6 nonqualified deferred compensation plan under section 

7 409A(d)(1) of the Internal Revenue Code of 1986) to any 

8 officer of the debtor serving as member of the board of 

9 directors of the debtor within the year before the date of 

10 the commencement of the case, and any individual serving 

11 as chairman or lead director of the board of directors at 

12 the time of the granting of relief under section 1113 or 

13 1114 or, if no such relief has been granted, the termi14 nation of the defined benefit plan. 

15 ‘‘(d) The trustee or a committee appointed pursuant 

16 to section 1102 may commence an action to recover such 

17 claims, except that if neither the trustee nor such com18 mittee commences an action to recover such claim by the 

19 first date set for the hearing on the confirmation of plan 

20 under section 1129, any party in interest may apply to 

21 the court for authority to recover such claim for the ben22 efit of the estate. The costs of recovery shall be borne by 

23 the estate. 

24 ‘‘(e) The court shall not award postpetition com25 pensation under section 503(c) or otherwise to any person 


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1 subject to subsection (c) if there is a reasonable likelihood 

2 that such compensation is intended to reimburse or re3 place compensation recovered by the estate under this sec4 tion.’’. 

5 SEC. 305. PREFERENTIAL COMPENSATION TRANSFER. 

6 Section 547 of title 11, United States Code, is 

7 amended by adding at the end the following: 

8 ‘‘(j) The trustee may avoid a transfer to or for the 

9 benefit of an insider (including an obligation incurred for 

10 the benefit of an insider under an employment contract) 

11 made in anticipation of bankruptcy, or a transfer made 

12 in anticipation of bankruptcy to a consultant who is for13 merly an insider and who is retained to provide services 

14 to an entity that becomes a debtor (including an obligation 

15 under a contract to provide services to such entity or to 

16 a debtor) made or incurred on or within 1 year before the 

17 filing of the petition. No provision of subsection (c) shall 

18 constitute a defense against the recovery of such transfer. 

19 The trustee or a committee appointed pursuant to section 

20 1102 may commence an action to recover such transfer, 

21 except that, if neither the trustee nor such committee com22 mences an action to recover such transfer by the time of 

23 the commencement of a hearing on the confirmation of 

24 a plan under section 1129, any party in interest may apply 

25 to the court for authority to recover the claims for the 


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1 benefit of the estate. The costs of recovery shall be borne 

2 by the estate.’’. 

3 TITLE IV—OTHER PROVISIONS 

4 SEC. 401. UNION PROOF OF CLAIM. 

5 Section 501(a) of title 11, United States Code, is 

6 amended by inserting ‘‘, including a labor organization,’’ 

7 after ‘‘A creditor’’. 

8 SEC. 402. EXCEPTION FROM AUTOMATIC STAY. 

9 Section 362(b) of title 11, United States Code, is 

10 amended— 

11 (1) in paragraph (27), by striking ‘‘and’’ at the 

12 end; 

13 (2) in paragraph (28), by striking the period at 

14 the end and inserting ‘‘; and’’; and 

15 (3) by adding at the end the following: 

16 ‘‘(29) of the commencement or continuation of 

17 a grievance, arbitration, or similar dispute resolution 

18 proceeding established by a collective bargaining 

19 agreement that was or could have been commenced 

20 against the debtor before the filing of a case under 

21 this title, or the payment or enforcement of an 

22 award or settlement under such proceeding.’’. 

Æ 


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