[Congressional Bills 117th Congress]
[From the U.S. Government Publishing Office]
[S. 5097 Introduced in Senate (IS)]
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117th CONGRESS
2d Session
S. 5097
To provide protections for pensions in bankruptcy proceedings, and for
other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
November 15, 2022
Mr. Manchin introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To provide protections for pensions in bankruptcy proceedings, and for
other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Stop Looting American Pensions Act
of 2022'' or the ``SLAP Act''.
SEC. 2. AMENDMENTS TO THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF
1974 AND THE INTERNAL REVENUE CODE OF 1986.
(a) Minimum Funding Standard.--
(1) Amendment to the employee retirement income security
act of 1974.--Section 302(a) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1082(a)) is amended by adding
at the end the following:
``(3) Cases under title 11.--A plan shall continue to be
required to satisfy the minimum funding standard under
paragraph (1) if a case under title 11, United States Code, is
commenced with respect to the employer unless the Secretary of
the Treasury has waived the requirements of this subsection
with respect to the plan under subsection (c).''.
(2) Amendment to the internal revenue code of 1986.--
Section 412(a) of the Internal Revenue Code of 1986 is amended
by adding at the end the following:
``(3) Cases under title 11.--A plan shall continue to be
required to satisfy the minimum funding standard under
paragraph (1) if a case under title 11, United States Code, is
commenced with respect to the employer unless the Secretary has
waived the requirements of this subsection with respect to the
plan under subsection (c).''.
(b) Obligation To Contribute.--Section 4212 of the Employee
Retirement Income Security Act of 1974 (29 U.S.C. 1392) is amended by
adding at the end the following:
``(d) Cases Under Title 11.--A person shall be subject to an
obligation to contribute under this part notwithstanding the
commencement of a case under title 11, United States Code, with respect
to that person.''.
(c) Obligation To Pay Withdrawal Liability.--Section 4220(c) of the
Employee Retirement Income Security Act of 1974 (29 U.S.C. 1399(c)) is
amended by adding at the end the following:
``(9) An employer shall be subject to an obligation to make
payments of withdrawal liability under this section
notwithstanding the commencement of a case under title 11,
United States Code, with respect to the employer.''.
SEC. 3. ADMINISTRATIVE EXPENSES AND PRIORITIES IN BANKRUPTCY
PROCEEDINGS.
(a) Allowance of Administrative Expenses.--
(1) In general.--Section 503(b) of title 11, United States
Code, is amended--
(A) in paragraph (8)(B), by striking ``and'';
(B) in paragraph (9), by striking the period at the
end and inserting a semicolon; and
(C) by adding at the end the following:
``(10) unpaid minimum required contributions, as defined in
section 302(c)(4)(C)(iii)(I) of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1082(c)(4)(C)(iii)(I)) and
section 4971(c)(4) of the Internal Revenue Code of 1986; and
``(11) withdrawal liability determined under part 1 of
subtitle E of title IV of the Employee Retirement Income
Security Act of 1974 (29 U.S.C. 1381 et seq.), including any
accelerated payment of such withdrawal liability under section
4219(c)(5) of the Employee Retirement Income Security Act of
1974 (29 U.S.C. 1399(c)(5)).''.
(2) Conforming amendment relating to priorities.--Section
507(a)(5) of title 11, United States Code, is amended, in the
matter preceding subparagraph (A), by inserting after
``contributions to an employee benefit plan'' the following:
``, other than for unpaid minimum required contributions, as
defined in section 302(c)(4)(C)(iii)(I) of the Employee
Retirement Income Security Act of 1974 (29 U.S.C.
1082(c)(4)(C)(iii)(I)) and section 4971(c)(4) of the Internal
Revenue Code of 1986''.
(b) Increased Wage Priority.--Section 507(a) of title 11, United
States Code, is amended--
(1) in paragraph (4), in the matter preceding subparagraph
(A)--
(A) by striking ``$10,000'' and inserting
``$20,000'';
(B) by striking ``within 180 days''; and
(C) by striking ``or the date of the cessation of
the debtor's business, whichever occurs first,''; and
(2) in paragraph (5)--
(A) in subparagraph (A)--
(i) by striking ``within 180 days''; and
(ii) by striking ``or the date of the
cessation of the debtor's business, whichever
occurs first''; and
(B) by striking subparagraph (B) and inserting the
following:
``(B) for each such plan, to the extent of the
number of employees covered by each such plan,
multiplied by $20,000.''.
SEC. 4. AUTOMATIC STAY IN BANKRUPTCY PROCEEDINGS.
Section 362(b) of title 11, United States Code, is amended--
(1) in paragraph (28), by striking ``and'' at the end;
(2) in paragraph (29), by striking the period at the end
and inserting ``; and''; and
(3) by inserting after paragraph (29) the following:
``(29) under subsection (a) of this section, the
commencement or continuation of an action or proceeding by the
Director of the Pension Benefits Guaranty Corporation to
enforce the minimum standard under section 303(k) of the
Employment Retirement Income Security Act of 1974 (29 U.S.C.
1083(k)).''.
SEC. 5. SALES OF PROPERTY IN BANKRUPTCY PROCEEDINGS.
(a) In General.--Section 363 of title 11, United States Code, is
amended--
(1) in subsection (b)(1), in the matter preceding
subparagraph (A), by striking ``The trustee'' and inserting
``Subject to subsection (q), the trustee'';
(2) in subsection (c)(1), by striking ``If the business''
and inserting ``Subject to subsection (q), if the business'';
and
(3) by adding at the end the following:
``(q)(1) Subject to paragraphs (2) and (3), the trustee may not
sell property of the estate under subsection (b) or (c) unless the
trustee is able to demonstrate that--
``(A) the sale complies with the provisions of this title;
``(B) the sale has been proposed in good faith and not by
any means forbidden by the law;
``(C) any payment made for services or for costs and
expenses in or in connection with the sale is reasonable;
``(D) if, with respect to the case, there is any fee
payable under section 1930 of title 28, the proceeds of the
sale will be used to pay that fee; and
``(E) with respect to each class of claims or interests--
``(i) such class has accepted the sale; or
``(ii) such class is not impaired by the sale.
``(2) The trustee, on request of the proponent of the sale, may
sell property of the estate under subsection (b) or (c) if--
``(A) all of the applicable requirements of paragraph (1)
other than subparagraph (E) are met with respect to a sale of
property; and
``(B) the sale does not discriminate unfairly, and is fair
and equitable, with respect to each class of claims or
interests that is impaired under, and has not accepted, the
sale.
``(3) The trustee may not sell substantially all of the property of
the estate under subsection (b) or (c) during the 60-day period
beginning on the date of the filing of the petition unless the court
determines that--
``(A) there is a high likelihood that the value of the
property of the estate will decrease significantly during that
period; and
``(B) the requirements under paragraph (1) have been
satisfied with respect to each sale that would contribute to
substantially all of the property of the estate being sold.''.
(b) Protection of Employee Benefits in a Sale of Assets.--Section
363(b) of title 11, United States Code, is amended by adding at the end
the following:
``(3) In approving a sale under this subsection, the court shall
consider the extent to which a bidder has offered to maintain existing
jobs, preserve terms and conditions of employment, and assume or match
pension and retiree health benefit obligations in determining whether
an offer constitutes the highest or best offer for such property.''.
SEC. 6. FRAUDULENT TRANSFERS AND OBLIGATIONS.
Section 548 of title 11, United States Code, is amended--
(1) in subsection (a)(1), in the matter preceding
subparagraph (A), by striking ``2 years'' and inserting ``6
years''; and
(2) in subsection (b), by striking ``2 years'' and
inserting ``6 years''.
SEC. 7. LIMITATIONS ON EXECUTIVE COMPENSATION ENHANCEMENTS.
Section 503(c) of title 11, United States Code, is amended--
(1) in paragraph (1), in the matter preceding subparagraph
(A)--
(A) by inserting ``, a senior executive officer, or
any of the 20 next most highly compensated employees or
consultants'' after ``an insider'';
(B) by inserting ``or for the payment of
performance or incentive compensation, or a bonus of
any kind, or other financial returns designed to
replace or enhance incentive, stock, or other
compensation in effect before the date of the
commencement of the case,'' after ``remain with the
debtor's business,''; and
(C) by inserting ``clear and convincing'' before
``evidence in the record''; and
(2) by amending paragraph (3) to read as follows:
``(3) other transfers or obligations, to or for the benefit
of insiders, senior executive officers, managers, or
consultants providing services to the debtor, in the absence of
a finding by the court, based upon clear and convincing
evidence, and without deference to the debtor's request for
such payments, that such transfers or obligations are essential
to the survival of the debtor's business or (in the case of a
liquidation of some or all of the debtor's assets) essential to
the orderly liquidation and maximization of value of the assets
of the debtor, in either case, because of the essential nature
of the services provided, and then only to the extent that the
court finds such transfers or obligations are reasonable
compared to individuals holding comparable positions at
comparable companies in the same industry and not
disproportionate in light of economic concessions by the
debtor's nonmanagement workforce during the case.''.
SEC. 8. APPLICABILITY.
This Act and the amendments made by this Act shall apply with
respect to any case that is commenced on or after the date of enactment
of this Act.
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