“Relief Is No Longer Relief:” Financial-Market Upheaval Overtakes Best Intentions of Pension Legislation

Even with American Rescue Plan Act relief largely unavailable, pension plan balance sheets improved in 2022, causing some corporate plan sponsors to consider adding risk in 2023.

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For corporate pension plan sponsors and asset allocators, plans are often made to be changed. There may be no better example than the financial market’s roller-coaster ride over the past 21 months and the careful planning upended along the way.

Consider early March 2021. The S&P 500 was trading at about 3,939, and the U.S. 10-year note yielded about 1.52%. On March 11, President Joe Biden signed into law the American Rescue Plan Act, offering relief for corporate employers struggling with higher pension contributions—the legacy of years of near-zero interest rates.

Everything is quite different today. The 10-year note topped 4% in early November (it has since fallen), and concerns about rising interest rates have sent stocks swooning this year. The ARPA pension provisions are nearly meaningless, and the seismic market shift has led to big changes in the pension plan industry, with more likely to follow.

Nevertheless, according to Milliman’s monthly records, the plan funded ratio through October was 112.8%, with a funded status surplus of $163 billion.

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“At the end of 2022, balance sheets will have greatly improved,” says Zorast Wadia, a principal and consulting actuary with Milliman. “That begs the question: What should be your pension funding strategy going forward?”

For many corporate plan sponsors, the answer is some sort of risk management scheme. In the second quarter of 2022, pension buyouts topped a fresh record, according to data from LIMRA. As previously reported, those numbers include heavyweights like IBM.

While it is largely some jumbo transactions that are helping goose the numbers, there is much more appetite among plan sponsors now that funded status has improved so drastically, says Michael Clark, managing director and consulting actuary with Agilis Partners LLC.

“In 2020 and into 2021, a lot of plan sponsors still looked at pension risk transfer as potentially cost prohibitive,” Clark said. With funding status much improved, this now looks like a perfect moment to shed risk.

“There’s definitely a disconnect” between the relief promised by ARPA and strategies like pension risk transfers and liability-driven investing, according to Clark.

“Relief is structured to protect companies, when rates are low, from having a spike in liabilities,” says Clark. “When rates are higher, there’s more reason to consider those strategies. What we’re going to see in 2023 is that relief is no longer relief,” as rates have spiked higher.

There is also likely to be more take-up of strategies around liability-driven investing, says Randy Cusick, managing director at SEI Institutional Group. “A lot of clients are saying, ‘It’s time to start hedging interest rate risk.’”

In the immediate aftermath of ARPA’s passage, some sponsors reallocated toward riskier assets, Cusick notes, taking advantage of the longer funding time horizon offered by the legislation. He expects more reallocating to take place as sponsors assess the changed market conditions.

Milliman’s Wadia thinks this is a perfect moment for sponsors to consider LDI. “Funding relief has allowed plan sponsors to invest more conservatively,” he says, since they’re no longer trying to make up for shortfalls. Instead of risk transfer, “shift from equities to fixed income over time, thereby solidifying your funded status even more.”

Perhaps more important, Wadia says, is trying to avoid the same mistakes made in the late 1990s, the last period in which corporate pensions flourished, that later led to shortfalls. “We’re seeing the same conditions now that allowed plans to flourish back then,” Wadia says. “You want to avoid some of the plan design features that caused them to have to be frozen.”

This is a good time to restructure plans to avoid the highly leveraged final average pay designs found in traditional DB plans, Wadia says, in favor of a better cost-sharing relationship between employer and employee, as found in many hybrid structures such as cash balance plans.

Clark agrees. If anything, he thinks, ARPA did give sponsors time to consider their options.

“The interesting thing will be to watch what sponsors do in terms of rebalancing once it seems like we’ve turned the corner,” Clark says. “Given the economic environment, it’s not unfathomable that we would see sponsors evaluate their asset balance strategy to capture any upside, while keeping in mind how much they want to keep allocated to LDI.”

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Dell Agrees to $1 Billion Class Action Payout

Settlement could become one of the Top 20 all-time shareholder-related settlements.



On November 16, 2022, Dell Technologies Inc. reached a $1 billion settlement with shareholders, according to a Dell 8-K filed with the U.S Securities and Exchange Commission. The announced agreement looks to resolve investors’ allegations that they were short-changed billions of dollars for their Class V stock in connection with a 2018 transaction that turned Dell into a public company. The settlement comes as the shareholder lawsuit alleging various breaches of fiduciary duties against Michael Dell, Silver Lake, and others was set to go to trial next month in the Delaware Court of Chancery.

In the asserted transaction valued at $24 billion, Dell’s controlling shareholders – Michael Dell, Egon Durban, and the private equity firm Silver Lake – allegedly expropriated $10.7 billion from public Class V shareholders by forcing them to convert their shares into cash or privately held shares of Class C common stock at an unfair price. Class V stock was a publicly traded “tracking stock” that tracked the performance of VMware, Inc.’s publicly traded shares. However, the class action complaint alleges the purported $120 per share consideration fell well below the market price of the VMware stock that the Class V stock was intended to track.

The alleged multi-billion-dollar windfall Dell’s controllers received at the expense of shareholders was further compounded by the “egregious” overvaluation of privately held Dell C shares – internally valued at $6 billion less than what Dell claimed – according to investors.

The class action complaint, initially filed on 8 November 2018, further alleges:

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While a special committee was established, Dell was able to bypass the committee, which was never independent or empowered to oversee the forced conversion

The controllers drastically overvalued Dell’s Class C stock, with substantial assistance from their financial advisor, Goldman Sachs, who received a $70 million success fee

The controllers and Goldman Sachs tainted the process by coercively threatening a forced conversion

The stockholder vote was the product of Class V stockholders receiving material misinformation and Dell omitting critical information

Prior to the claims filing procedure – which will allow investors to participate within the recovery process – the tentative $1 billion settlement must first be approved by Vice Chancellor Travis J. Laster. Vice Chancellor Laster previously rejected Michael Dell and the other defendants’ attempts to dismiss the suit, which set up the December 2022 trial.

The $1 billion payout covers claims against Michael Dell, other Dell directors, Silver Lake, as well as Goldman Sachs. “This is an historic result — one that can be the product only of a very strong case,” said Minor Myers, a professor at the University of Connecticut School of Law. “This is a good result, for sure, but the risk that the defendants faced at trial had to be colossal to result in a settlement like this.”

Once officially approved by the Vice Chancellor, this shareholder-related case will become:

  • The 17th billion-dollar settlement and 17th largest U.S. class action of all-time (coincidentally, just behind and just ahead of two American International Group, Inc. settlements, $1,009,500,000 in 2013 and $970,500,000 in 2015)
  • The largest settlement in a U.S. state court (the 16 larger settlements all took place in various U.S. federal courts)
  • The largest settlement reached in the Delaware Court of Chancery and the largest recorded in the state of Delaware, overall (surpassing the $300 million DaimlerChrysler AG settlement in USDC Delaware in February 2004)

ISS Securities Class Action Services is owned by Institutional Shareholder Services, the parent company of CIO.


Top 5 Shareholder Settlements in State Court

*Tentative settlement – awaiting court approval (likely in 2023)

Case Name Settlement Amount Settlement Year Court Venue
Dell Technologies $1 Billion * Delaware Court of Chancery
Caremark Rx $310 Million 2016 Alabama Circuit Court
Activision Blizzard $275 Million 2015 Delaware Court of Chancery
Kinder Morgan $200 Million 2010 Kansas District Court
Digex $165 Million 2010 Delaware Court of Chancery

Source: ISS Securities Class Action Services

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