Eastman Kodak retirees, both present and future, would appear to be in need of a hero. They will be wringing their hands over the news that the company filed for bankruptcy protection in late January. Those based in the UK, however, are likely to be a bit more concerned about their retirement, and with good reason.
Founded in Rochester, New York, in 1892, Eastman Kodak boasted a long history in fair Albion. Needless to say, the company has a large number of retirees in the country who draw on, or hope to draw on, what has been a relatively generous, albeit chronically underfunded, pension scheme. According to its 2010 annual report, Kodak promised to pour as much as $830m (€650m) into the scheme over the next 10 years.
But UK pensioners - not to mention the UK Pension Protection Fund (PPF) - are now understandably concerned about their chances of seeing any of that money. There have been suggestions that the PPF - invoking powers granted by the UK Pensions Act of 2004 - will now ride to the rescue like some white knight, brandishing ‘moral hazard powers’ to win back hard-earned retirement funds. But a recent decision by the Third US Circuit Court of Appeals gives reason to pause. In early January, it ruled that the PPF and trustees at now-bankrupt Nortel Networks could not use the so-called ‘police protection exemption’ in the US Bankruptcy Code - in order to gain a better position in Nortel’s debtor queue - because they were not “government entities”. Even though the PPF “owes its existence” to the UK Pensions Act, that relationship was “not active” during the assessment period because the fund is now “standing in the shoes” of a private party, the Court said.
Interestingly, the court’s decision concludes with a rather surprising, almost Shakespearean moment when it chastises all of the lawyers involved in the case. “We are concerned,” it says, “that the attorneys representing the respective sparring parties may be focusing on some of the technical differences governing bankruptcy in the various jurisdictions without considering there are real, live individuals who will ultimately be affected by the decisions being made in the courtrooms.”
It also employs the sort of evocative language one almost never sees in any form of legalese, lamenting the fact that it is the pensioners who will be the ultimate losers in this battle - “the pawns in the moves being made by the knights and the rooks”. As Kodak finally falls, it seems there will be more pawns in need of a knight.