“Government departments are no longer going to be able to get away with spending billions of dollars while failing to deliver meaningful outcomes for taxpayers. Any Government ACT is part of will demand higher standards and greater accountability from chief executives and departments for the money they spend”, says ACT Leader David Seymour.
“Government spending has grown from $80.6 billion a year in 2017 to $137 billion in 2023, a 70 per cent increase in nominal terms. But New Zealanders, including Labour voters, believe public services are now worse than they were a few years ago.
“People are waiting longer in hospital emergency departments and 40 per cent of patients given a commitment to treat do not receive that treatment within the required timeframe. Children’s literacy, numeracy, and school attendance are all falling, with 40 per cent of 15-year-old students struggling to read and write. 2,878 fewer criminals are behind bars, but the number of victims is growing.
“How can government get away with spending so much and delivering so little? ACT says we need to address two underlying problems:
“ACT proposes three changes.
“First, there’s a growing disconnect between what government considers priorities and good performance, and the quality of services the public experiences. Large, expensive and poorly thought-out pet projects like restructuring the health or polytechnic systems are treated as goals in and of themselves. Ministers can be so focused on their pet projects that they lose sight of whether they will Excellerate New Zealanders’ lives.
“The problem is that performance reporting of public services is haphazard, measures can be cherry-picked, results can be reported in a way that isn’t coherent, and it’s difficult or impossible to track trends over time. This Government is rife with examples of politicising performance data.
“ACT will set meaningful performance measures for key government services based on outputs and outcomes (e.g. student performance in international assessments), rather than inputs (e.g. student-teacher ratios).
“Monitoring would be done by the Treasury and reported annually. Measuring the effectiveness of core public services should already be a basic Treasury function, but it has been distracted by dubious concepts like ‘wellbeing’ and the ‘living standards framework’, rather than ensuring investment in public services is making people better off.
“Australia is miles ahead of New Zealand with a wide range of indicators relating to equity, effectiveness and efficiency. The process is long-standing, so it is de-politicised, builds a repository of long-run data which allows meaningful comparisons across Governments, and the public can trust it.
“Second, Ministers are accountable to New Zealanders for outcomes, but they don’t have sufficient power over departments and chief executives to deliver those outcomes. What happens when bureaucrats are incompetent, or when a department doesn’t have the same sense of urgency as the Minister or has priorities of its own? Ministers can shift the blame onto departments, and plead ignorance or an inability to intervene, and then chief executives escape public accountability.
“This problem will only get worse under Labour’s Public Service Act which concentrates power with the Public Service Commissioner rather than democratically elected Ministers. The Public Service Commissioner oversees performance reviews for chief executives. But their KPIs, and the results of performance reviews, are not public. The Public Service Commissioner’s priorities or metrics for success are unlikely to be the same as the Minister’s.
“ACT will enable Ministers to publicly issue their own KPIs for chief executives, conduct performance reviews against those metrics, and then publish them. One KPI all chief executives would have is recognising and stopping wasteful spending. Departmental budgets would be linked to KPIs to ensure activities that the Government prioritises are properly funded. It will also ensure that departments maintain a focus on high value activities.
“Finally, having excellent chief executives – and incentives for excellent performance – matters. But public service chief executives have few incentives to cut waste, discover efficiencies or innovation, or deliver outcomes that the Minister prioritises. Chief executives can lose focus by not adequately understanding how to manage activities and staff according to the Minister’s priorities. The culture of the public service means that poor-performing chief executives can simply shift from department to department.
“ACT would reintroduce performance-based pay, remove the cap on the ‘exceptional performance’ component, and enable this component to be determined by the Minister. The Public Service Commissioner would still be responsible for setting base salaries, but the discretionary component should be determined in line with the Minister’s assessment of how the chief executive has performed against their expectations and KPIs.
“Individual employment agreements would include a base salary, and Ministers would have discretion to attach bonuses when agreeing on KPIs with the chief executive.
“This change will supply Ministers a further lever for driving performance. While the Public Service Commissioner has a role to ensure salaries are in line with labour market rates to ensure recruitment, it is not in the best position to decide with chief executives are delivering on the Government’s priorities.
“ACT’s plan for higher standards and greater accountability for chief executives and government departments is a step towards more effective and more efficient public services for New Zealanders.”
ACT’s plan for efficient and effective public services can be found here.
© Scoop Media
The Department of Veterans Affairs estimates that "potentially millions" more veterans or their survivors could be eligible to receive health care or financial compensation for toxic exposure-related medical conditions newly considered presumptive under the PACT Act, said Steve Miska, PACT Act transitional executive director.
The law's presumptive aspect "gives us the opportunity to automatically assume, that by virtue of a veteran having this condition, it must be due to their service," Miska told Military.com. "That is a game changer in terms of how veterans historically have had to file a claim" for PACT Act conditions: "Not only did they have to prove that those conditions were manifesting, but they also had to prove the service connection."
The law added what Miska described as 23 new "buckets of conditions," amounting to more than 330 medical conditions altogether. Some of the buckets contain, for example, a number of types of cancers.
Whereas in the past, the VA approved about 25% of claims related to burn pit exposures, the rate was about 78.6% for PACT Act claims in the first year, Miska said.
The PACT Act presumes a service connection -- provided the veteran served in a certain place at a certain time -- for the following conditions related to toxic exposures from burn pits, contaminated water at Marine Corps bases in North Carolina, and the Vietnam-era chemical defoliant, Agent Orange.
To be eligible for PACT Act compensation for exposure to burn pits or other toxins, veterans must have served at some point since Aug. 2, 1990, on the ground or in the airspace above Bahrain, Iraq, Kuwait, Oman, Qatar, Saudi Arabia, Somalia, United Arab Emirates, the Arabian Sea, the Gulf of Aden, the Gulf of Oman, the neutral zone between Iraq and Saudi Arabia, the Persian Gulf or the Red Sea; or since Sept. 11, 2001, on the ground or in the airspace above Afghanistan, Djibouti, Egypt, Jordan, Lebanon, Syria, Uzbekistan or Yemen.
If the veteran has, or has had, one of these conditions, the PACT Act assumes it is connected to burn pits:
To be eligible for PACT Act benefits for exposure to contaminated water in North Carolina, veterans must have served at either Marine Corps Base Camp Lejeune or Marine Corps Air Station New River between Aug. 1, 1953, and Dec. 31, 1987.
If the veteran has, or has had, one of these conditions, the PACT Act assumes it is connected to contaminated water:
The PACT Act added five new locations where it presumes conditions are related to exposure to the defoliant Agent Orange: military bases in Thailand, Jan. 9, 1962-June 30, 1976; Laos, Dec. 1, 1965-Sept. 30, 1969; locations in Cambodia, April 16-30, 1969; Guam or American Samoa or territorial waters off either location, Jan. 6, 1962-July 31, 1980; and Johnston Atoll or on a ship that called there, Jan. 1, 1972, through Sept. 30, 1977.
If the veteran has, or has had, one of these conditions, the PACT Act assumes it is connected to Agent Orange:
The VA already presumed a service connection to Agent Orange for a number of other conditions at additional locations.
The PACT Act only added new presumptive service connections. The VA already covered conditions presumed to be from exposure to asbestos, mustard gas, chemical testing and more circumstances of military service.
Just because the PACT Act hasn't declared a condition presumptive yet doesn't mean it never will, Miska said. The law requires the VA to examine evidence of service connection to "future potential conditions" to recommend for inclusion.
-- Amanda Miller can be reached at email@example.com.
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Back in 2018, the State of California joined the Right to Repair Act bill, which aims to create laws that force tech companies to provide tools for both customers and independent stores to repair their products. Although Apple was initially against this bill, the company surprisingly decided to support the bill in California for the first time.
As noted by iFixit, Apple has decided to endorse the California Right to Repair bill for the first time, which came as a surprise.
The bill known as SB 244 will require manufacturers to provide parts, tools, and repair diagnostics necessary for both customers and third-party repair providers to fix products. The idea is to encourage a “competitive repair market” that is “cheaper for consumers and better for the planet.”
Once the bill is enacted, manufacturers will have to provide parts, tools, and repair documentation for products costing between $50 and $99.99 for three years after the end of the product’s manufacture. For products costing more than $100, these materials must be available for seven years after the end of manufacture.
“These terms will ensure that manufacturers can’t drop product repair support at the end of a product’s warranty period,” iFixit explains. Currently, Apple provides support for products for up to five years after the end of sales. In some cases, parts are available for up to seven years after the product is no longer sold, depending on the availability of the parts.
If a company violates the new law, it will have to pay $1,000 a day for the first violation, $2,000 a day for the second violation, and $5,000 a day for subsequent violations. New York was the first US state to pass the Right to Repair bill, and a lobbyist working for Apple, Google, and Samsung has been trying to dilute the impact of the new law ever since.
Amidst bills such as the Right to Repair Act in the US, Apple has launched the “Self Service Repair” program, which provides the tools, documentation, and parts so that consumers can repair their devices themselves. The program was launched in the US and recently expanded to some countries in Europe, including Belgium, France, Germany, Italy, Spain, and the UK.
The company has also been making its devices more repairable. For instance, the iPhone 14’s frame has been redesigned so that the back glass can be easily replaced – something that wasn’t possible before. As a result, repairs to cracked back glass are now cheaper, as they no longer require replacing the entire device.
You can find more details about Apple’s Self Service Repair program on the company’s website.
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The No Surprises Act was a landmark piece of legislation aimed at protecting patients from unexpected medical bills.1 Although the law is a significant step forward for patient protection, it has resulted in a significant increase in financial support requests from anesthesia providers who serve patients at ambulatory surgery centers (ASCs). This article will outline the hallmarks of the act, its impact, and the operational and compliance considerations for ASCs that need to implement coverage arrangements with their anesthesia groups.
Landscape Prior to No Surprises
Prior to the No Surprises Act, patients who unintentionally received care from an out-of-network provider could potentially have received a “surprise medical bill” from a facility or provider. This occurred in emergency room situations where the patient had no ability to select the emergency room, physician, or ambulance provider. Additionally, surprise bills resulted from services provided at an in-network facility for a patient but from an out-of-network provider. This was common for services provided by anesthesia, first assist, and radiology providers. 2
Additionally, healthcare costs and pricing information were often difficult to obtain prior to receiving treatment, and patients frequently faced challenges in understanding the cost implications of their healthcare choices. Moreover, billing disputes between healthcare providers and insurance companies often left patients caught in the middle. Consequently, surprise medical bills could result in higher fees for patients in a couple of ways. First, higher cost sharing between health plans and patients, with most patients having to pay a higher co-pay for out-of-network services. Second, many providers would balance bills, which allowed “the out-of-network provider [to] bill consumers for the difference between the charges the provider billed, and the amount paid by the consumer’s health plan.”3
Implementation of No Surprises
Due to these circumstances, the No Surprises Act was passed as part of the Consolidated Appropriations Act, 2021 and began taking effect on January 1, 2022. Now after a patient receives care, the healthcare provider will verify the patient’s insurance and determine if they are in-network or out-of-network. If the patient receives care from an out-of-network provider at an in-network facility, the patient is only responsible for their in-network cost-sharing amount, such as deductibles, co-pays, or coinsurance. The provider will then bill the insurance for their services. After the insurance company processes the provider’s claim, the patient will then be billed for their responsibility for the in-network cost-sharing amounts. If there is a dispute between the provider and the insurance company regarding reimbursement for out-of-network services, the provider and insurance company may engage in the independent dispute resolution (IDR) process, where an independent arbiter reviews the case and determines the appropriate payment.2
Current State of No Surprises Act
The implementation of the act has caused tension between providers and insurers. Prior to the act, many providers had relied on balance billing to generate revenue. Now, not only is this practice illegal in certain scenarios, but insurance companies are typically only willing to pay something near the qualified payment amount (QPA), which is the median rate for those in-network services for the given geographical area.4 This can neglect crucial factors and can be very different from the amount they were used to receiving. This has resulted in numerous providers and payers entering negotiations and the IDR process.5
Considerations for ASCs
Given the reduction in billings that some provider groups may be experiencing because of the No Surprises Act, anesthesia groups with coverage arrangements with ASCs have found themselves requesting additional compensation. For some ASCs, this is a request they are grappling with for the first time. It is very important to understand that these arrangements are set at fair market value from a compliance perspective. To help navigate these arrangements, VMG Health has outlined some important factors for ASCs to consider.
The No Surprises Act is a major step towards protecting patients from unexpected medical bills, but it presents significant challenges for healthcare providers. Providers must adapt to the new law's requirements, which can be time-consuming, costly, and complicated. While providers will need to be proactive in addressing these challenges, facilities may be asked to provide further financial assistance in certain arrangements. Having open and thorough conversations about the needs of the facility, while balancing the challenges faced by anesthesia groups, will be an effective way for facilities and providers to continue partnering to provide high-quality care for patients.
A section of Route 434 Greenway project connecting Vestal to Binghamton officially opened this week.
The completed $23.9 million project includes a 2.5-mile bicycle and pedestrian path along the south side of state Route 434 from Pennsylvania Avenue in Binghamton to Murray Hill Road in Vestal, adjacent to Binghamton University.
"This piece is an important connection to the existing sections and is part of a larger plan to provide a connected system of multi-use trails within the Binghamton metropolitan area," Binghamton Metropolitan Transportation Study executive director Jennifer Yonkoski said at a MacArthur Park press conference Tuesday.
The project, which was announced by the Department of Transportation in February 2021, connects an existing greenway at Pennsylvania Avenue to downtown Binghamton, giving walkers, joggers and cyclists easy access to downtown, the city's South Side neighborhoods, Binghamton University's main campus as well as dozens of businesses, stores, restaurants and recreational facilities.
The new path features modern lighting and landscaping and is compliant with the Americans with Disabilities Act. It's also separated from the roadway by guide rails and concrete barriers.
Upgraded intersections along Route 434 with new signals and crosswalks to enhance safety for pedestrians and motorists were also included in the project.
The first phase of the Greenway, completed in 2018, allows pedestrians to safely pass from Conklin Avenue to Pennsylvania Avenue and the Vestal Parkway.
At just over $4 million, the first section features enhanced crosswalk protection, with a flashing light and raised crosswalk at the end of the pedestrian bridge crossing Conklin Avenue.
The multiuse path stretches from Conklin Avenue to a trail across the Pennsylvania Avenue bridge and to Vestal Avenue.
Pickleball on the rise in Binghamton: But there aren't enough courts.
For the latest section, three options were initially presented to the public for discussion, and in addition to the ultimately chosen favorite, the two other options included the Greenway to be built either largely along Vestal Avenue or using a portion of Vestal Avenue from Ivanhoe Road west.
Part of this section of the project was met with opposition along the way. In February 2020, residents near the planned Ivanhoe Road access point presented a petition to the state DOT calling on Greenway planners to abandon the connection to the walkway over concerns of potential disruption of the relatively quiet, residential nature of the neighborhood.
Emily Barnes is the New York State Team Consumer Advocate Reporter for the USA Today Network. Contact Emily at firstname.lastname@example.org or on Twitter @byemilybarnes. To get unlimited access to the latest news, please subscribe or activate your digital account today.
This article originally appeared on Binghamton Press & Sun-Bulletin: Multi-million dollar portion of Broome County Greenway project now open
As objections arose, especially against provisions on road width and floor space index in the draft master plan, the government convened a meeting in July. As per the minutes of the meeting, it has been decided to follow the interim development order (IDO) till the draft master plan 2040 gets sanctioned.
Based on the minutes of this meeting, the civic body reversed the earlier circular and issued a new one on August 5 saying that all applications for building permits will be processed based on the IDO. With a heavily relaxed set of regulations, IDO is preferred as a no hassle way of processing permits, officials said.
NCLAT Chennai held that dues under ‘Central Excise Act, 1944’ would have first charge only after the dues under the Provisions of the Code are recovered. Accordingly, application against approved Resolution Plan dismissed as Resolution Plan meets requirement of Section 30(2) of the Code.
Facts- Challenge in this Appeal is to the Impugned Order passed by National Company Law Appellate Tribunal, Hyderabad Bench, allowing the Application preferred by the Resolution Professional of the Corporate Debtor Company, seeking approval of the Resolution Plan of ‘M/s Renganayaki Agencies’.
The Appellant challenges the approval of the Resolution Plan on the ground that the Corporate Debtor owes Rs. 22,60,32,948/- towards default in payment of Central Excise Duty, interest and penalty as per Central Excise Returns filed with the Appellant Department. As per the Resolution Plan, only 13% has been earmarked towards Government dues, and the Financial Creditor is getting 44.5% of the Claim amounts and the other Operational Creditors are getting 0.51% of their Claim amounts, which is stated to be unfair.
Conclusion- Held that the Master Circular No.1053/02/2017-CX, issued by the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs specifies that dues under ‘Central Excise Act, 1944’ would have first charge only after the dues under the Provisions of the Code are recovered.
In the instant case, this Tribunal do not find any such irregularity in the Provisions of the Resolution Plan, as specified under Section 30 (2) of the Code. Additionally, this ‘Tribunal’ is quite alive and conscious of the fact that the Resolution Plan was fully implemented and the Successful Resolution Applicant had made payments amounting to Rs. 35,25,00,000/- to all the Creditors and almost 2 years has passed since the approval of the Resolution Plan and this ‘Tribunal’ does not find any tangible and substantial reasons to set the clock back at this point of time.
FULL TEXT OF THE NCLAT JUDGMENT/ORDER
1. Challenge in this Appeal is to the Impugned Order dated 13/08/2020 passed in IA 1094/2020 in CP(IB)153/07/HDB/2019 by National Company Law Appellate Tribunal, Hyderabad Bench, allowing the Application 1094/2020 preferred by the Resolution Professional of the Corporate Debtor Company, seeking approval of the Resolution Plan of ‘M/s Renganayaki Agencies’.
2. The Appellant challenges the approval of the Resolution Plan on the ground that the Corporate Debtor owes Rs. 22,60,32,948/- towards default in payment of Central Excise Duty, interest and penalty as per Central Excise Returns filed with the Appellant Department. As per the Resolution Plan, only 13% has been earmarked towards Government dues, and the Financial Creditor is getting 44.5% of the Claim amounts and the other Operational Creditors are getting 0.51% of their Claim amounts, which is stated to be unfair.
3. It is vehemently argued by the Learned Counsel for the Appellant that in view of the attachment on the Property of the Corporate Debtor, the Appellant could fall within the definition of ‘Secured Creditor’. The Plan also notes that the total sum for the purpose of Resolution Plan is Rs. 4,73,42,602/- and that in the event the Application of the Appellant is rejected under SABHKA VISWA SCHEME, the total Claim would be Rs. 22,60,32,948/- . It is contended that the Corporate Debtor had filed under the said Scheme and had agreed to pay an amount of Rs. 4,73,42,602/- during the CIRP Period and on account of non-payment, the total sum due to the Appellant, today is Rs. 22,60,32,948/-. The Learned Counsel for the Appellant placed reliance on the letter issued by the Successful Resolution Applicant on 13/09/2021 that out of the total amount, Government dues would be Rs. 1,38,00,000/- and that the Claim may go up, subject to the rejection of the Application filed under SABHKA VISWAS SCHEME. The Demand Draft totaling of Rs. 2,93,843/- was enclosed with the said letter. It is submitted by the Learned Counsel for the Appellant that the said amount was accepted ‘under protest’.
4. The Learned Senior Counsel for the Respondent submitted that the Appellant is challenging the approval of the Plan dated 13/08/2021 which was already implemented on 08/02/2022 and that an amount of Rs. 68,98,00,000/- was spent by the Successful Resolution Applicant, pursuant to the approval of the It is the case of the Respondent that there was no objection made by the Appellant when the Claim amount was intimated.
5. It is an admitted fact that the Plan submitted by ‘M/s Renganayaki Agencies’ was approved by the CoC with 100% majority votes, on 16/09/2020, which was also approved by the ‘Adjudicating Authority’, vide the Impugned Order dated 13/08/2021, observing in Para 18 as follows:
“The Applicant/Resolution Professional has submitted that the Resolution Applicant has sought certain waivers and reliefs. We are, however, not inclined to grant such concession or waivers. The Resolution Applicant needs to approach the authorities concerned for permits, if required, and the same will be considered by the authorities concerned in accordance with law. The instant Resolution Plan meets the requirements of Section 30(2) of the Code and Regulations 37, 38, 38 (1A) and 39(4) of the Regulations. The Resolution Plan is not in contravention of any of the provisions of Section 29A of the Code and is in accordance with law.”
6. It is recorded by the Adjudicating Authority that the Plan is in compliance of Section 30(2) of the Code and Regulations 37, 38, 38(1A) and 39(4) of the CIRP Regulations, 2016.
7. As regarding the contention of the Learned Counsel for the Appellant that the decision of the Hon’ble Supreme Court in the matter on ‘State Tax Officer Rainbow Papers Limited’, reported in [(2022) SCC Online SC 1162], is applicable to the facts of this case, this Tribunal is of the considered view that the ratio laid down by the Hon’ble Apex Court in the matter on ‘State Tax Officer Vs. Rainbow Papers Limited’, (Supra) is with respect to whether the provisions of the IBC, in particular, Section 53 thereof, overrides Section 48 of the GVAT Act, 2003 and it was held by the Hon’ble Apex Court that Section 48 of the ‘Gujarat Value Added Tax Act, 2003’ (GVAT Act, 2003) is not contrary or inconsistent with Section 53 or any other provisions of IBC. It was observed that under Section 53 (1) (b) (ii), the debts owed to a Secured Creditor, which would include the State, under the ‘GVAT Act, 2003’, are to rank equally with other specified debts including debts on account of workman’s dues for a period of 24 months preceding the Liquidation Commencement date and hence it was held in that case that the State, is a Secured Creditor under ‘GVAT Act, 2003’. In this instant case, the Demand orders were issued to the Corporate Debtor under the ‘Central Excise Act, 1944’. Section 11E of the ‘Central Excise Act, 1944’ is distinct from the provisions of ‘GVAT Act, 2003’. For better understanding of the case, the said Section 11E of the Central Excise Act, 1944 is reproduced as hereunder:
“11E Liability under Act to be first charge— Notwithstanding anything to the Contrary contained in any Central Act or State Act, any amount of duty, penalty, interest, or any other sum payable by an assessee or any other person under this Act or the rules made thereunder shall, save as otherwise provided in Section 529A of the Companies Act, 1956, the Recovery of Debts Due to Banks and the Financial Institutions Act, 1993, the Securitisation and Reconstruction of Financial Assets and the Enforcement of Security Interest Act, 2002 and the Insolvency and Bankruptcy Code, 2016, be the first charge on the property of the assessee or the person, as the case may be.
8. From the usage of the words ‘save as provided in’ in Section 11E is in the nature of an exception intended to exclude the class of cases, mentioned in Companies Act, 1956, ‘The Recovery of Debts due to Banks and the Financial Institutions Act, 1993’, ‘SARFAESI Act, 2002’ and ‘I & B Code, 2016’. The ‘Secured Interest’ as defined under the Code excludes charges created by Operation of law. Section 11E of the Central Excise Act, 1944 is distinct from the provisions of the ‘Gujarat VAT Act, 2003’ and therefore, the decision in the matter of ‘State Tax Officer Vs. Rainbow Papers Limited’, (Supra) cannot be made applicable to the facts of this case. It is also pertinent to mention that the Master Circular No.1053/02/2017-CX, issued by the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs specifies that dues under ‘Central Excise Act, 1944’ would have first charge only after the dues under the Provisions of the Code are recovered. Once again, for better understanding of the case, Clause 20 of the Regulation is reproduced as hereunder:
“20. Recovery from the assets under liquidation: Section 53 of the Insolvency and Bankruptcy Code, 2016 provides for order of priority for distribution of proceeds from the sale of the liquidation assets. Pari-materia changes have been made in Section 11E of the Central Excise Act, 1944. In effect, the Central Excise dues shall have first charge, after the dues, if any, under the provisions of Companies Act, Recovery of Debt due to Bank and Financial Institution Act, 1993 and Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and the Insolvency and Bankruptcy Code, 2016, have been recovered.”
9. Keeping in view, the aforenoted Section of the ‘Central Excise Act, 1944’ is quite different from the ‘GVAT Act, 2003’ and Clause 20 of the aforenoted Circulation, this ‘Tribunal’ is of the considered view that the Appellant herein, cannot be treated as a ‘Secured Creditor’.
10. The Hon’ble Supreme Court in a Catena of Judgments in the matter of ‘Kalparaj Dharamshi & Anr. v. Kotak Investment Advisors Ltd. & Anr.’ reported in 2021 (10 SCC 401) has observed that the Commercial Wisdom of the CoC is non-justiciable, unless it is not in accordance with Section 30(2) of the The relevant Paras in the matter of ‘Kalparaj Dharamshi & Anr. v. Kotak Investment Advisors Ltd. & Anr.’ (Supra) are detailed as hereunder:
“164. It will be further relevant to refer to the following observations of this Court in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222] : (SCC pp. 186-87, para 57)
57. … Indubitably, the remedy of appeal including the width of jurisdiction of the appellate authority and the grounds of appeal, is a creature of statute. The provisions investing jurisdiction and authority in NCLT or Nclat as noticed earlier, have not made the commercial decision exercised by CoC of not approving the resolution plan or rejecting the same, justiciable. This position is reinforced from the limited grounds specified for instituting an appeal that too against an order “approving a resolution plan” under Section 31. First, that the approved resolution plan is in contravention of the provisions of any law for the time being in force. Second, there has been material irregularity in exercise of powers “by the resolution professional” during the corporate insolvency resolution period. Third, the debts owed to operational creditors have not been provided for in the resolution plan in the prescribed manner. Fourth, the insolvency resolution plan costs have not been provided for repayment in priority to all other debts. Fifth, the resolution plan does not comply with any other criteria specified by the Board. Significantly, the matters or grounds—be it under Section 30(2) or under Section 61(3) of the I&B Code —are regarding testing the validity of the “approved” resolution plan by CoC; and not for approving the resolution plan which has been disapproved or deemed to have been rejected by CoC in exercise of its business decision.”
165. It will therefore be clear, that this Court, in unequivocal terms, held, that the appeal is a creature of statute and that the statute has not invested jurisdiction and authority either with NCLT or NCLAT, to review the commercial decision exercised by CoC of approving the resolution plan or rejecting the same.
166. The position is clarified by the following observations in para 59 of the judgment in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222] , which reads thus : (SCC p. 187)
“59. In our view, neither the adjudicating authority (NCLT) nor the appellate authority (Nclat) has been endowed with the jurisdiction to reverse the commercial wisdom of the dissenting financial creditors and that too on the specious ground that it is only an opinion of the minority financial creditors.”
167. This Court in Essar Steel India Ltd. Committee of Creditors [Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531 : (2021) 2 SCC (Civ) 443] after reproducing certain paragraphs in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222] observed thus : (Essar Steel India case [Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531 : (2021) 2 SCC (Civ) 443] , SCC p. 589, para 67)
“67. … Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of Section 30(2) of the Code, insofar as the adjudicating authority is concerned, and Section 32 read with Section 61(3) of the Code, insofar as the Appellate Tribunal is concerned, the parameters of such review having been clearly laid down in K. Sashidhar [K. Sashidhar v. Indian Overseas Bank, (2019) 12 SCC 150 : (2019) 4 SCC (Civ) 222] .”
168. It can thus be seen, that this Court has clarified, that the limited judicial review, which is available, can in no circumstance trespass upon a business decision arrived at by the majority of
169. In Maharashtra Seamless Ltd. [Maharashtra Seamless Ltd. v. Padmanabhan Venkatesh, (2020) 11 SCC 467 : (2021) 1 SCC (Civ) 799] , NCLT had approved [V. Venkatachalam v. Indian Bank, 2019 SCC OnLine NCLT 713] the plan of the appellant therein with regard to CIRP of United Seamless Tubulaar (P) Ltd. In appeal, Nclat directed [Padmanabhan Venkatesh v. V. Venkatachalam, 2019 SCC OnLine NCLAT 285] , that the appellant therein should increase upfront payment to Rs 597.54 crore to the “financial creditors”, “operational creditors” and other creditors by paying an additional amount of Rs 120.54 crores. Nclat further directed, that in the event the “resolution applicant” failed to undertake the payment of additional amount of Rs 120.54 crores in addition to Rs 477 crores and deposit the said amount in escrow account within 30 days, the order of approval of the “resolution plan” was to be treated to be set aside. While allowing the appeal and setting aside the directions of Nclat, this Court observed thus : (Maharashtra Seamless case [Maharashtra Seamless Ltd. v. Padmanabhan Venkatesh, (2020) 11 SCC 467 : (2021) 1 SCC (Civ) 799] , SCC p. 487, para 30)
“30. The appellate authority has, in our opinion, proceeded on equitable perception rather than commercial wisdom. On the face of it, release of assets at a value 20% below its liquidation value arrived at by the valuers seems inequitable. Here, we feel the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. Such is the scheme of the Code. Section 31(1) of the Code lays down in clear terms that for final approval of a resolution plan, the adjudicating authority has to be satisfied that the requirement of subsection (2) of Section 30 of the Code has been complied with. The proviso to Section 31(1) of the Code stipulates the other point on which an adjudicating authority has to be satisfied. That factor is that the resolution plan has provisions for its implementation. The scope of interference by the adjudicating authority in limited judicial review has been laid down in Essar Steel [Essar Steel India Ltd. Committee of Creditors v. Satish Kumar Gupta, (2020) 8 SCC 531 : (2021) 2 SCC (Civ) 443] , the relevant passage (para 54) of which we have reproduced in earlier part of this judgment. The case of MSL in their appeal is that they want to run the company and infuse more funds. In such circumstances, we do not think the appellate authority ought to have interfered with the order of the adjudicating authority in directing the successful resolution applicant to enhance their fund inflow upfront.”
170. This Court observed, that the Court ought to cede ground to the commercial wisdom of the creditors rather than assess the resolution plan on the basis of quantitative analysis. This Court clearly held, that the appellate authority ought not to have interfered with the order of the adjudicating authority by directing the successful resolution applicant to enhance their fund inflow upfront.
171. It would thus be clear, that the legislative scheme, as interpreted by various decisions of this Court, is unambiguous. The commercial wisdom of CoC is not to be interfered with, excepting the limited scope as provided under Sections 30 and 31 of the I&B Code.
11. In the instant case, this Tribunal do not find any such irregularity in the Provisions of the Resolution Plan, as specified under Section 30 (2) of the Code. Additionally, this ‘Tribunal’ is quite alive and conscious of the fact that the Resolution Plan was fully implemented and the Successful Resolution Applicant had made payments amounting to Rs. 35,25,00,000/- to all the Creditors and almost 2 years has passed since the approval of the Resolution Plan and this ‘Tribunal’ does not find any tangible and substantial reasons to set the clock back at this point of time.
12. For all the a foregoing reasons this Company Appeal (AT) (CH) (Ins) No. 346/2021 is ‘dismissed’ accordingly. No Costs. The connected pending Interlocutory Applications, if any, are ‘closed’.
Tuesday, August 15, 2023
Acknowledging uncommon market conditions, the Pension Benefit Guaranty Corporation (PBGC) announced Technical Update Number 23-1 (the Update), which provides a one-time waiver of certain reporting requirements for some underfunded defined benefit pension plans under the Employee Retirement Income Security Act of 1974 (ERISA). However, to qualify for the waiver, pension plan sponsors still need to timely notify the PBGC.
Generally, ERISA Section 4010 requires plan sponsors (and controlled group members) of certain underfunded single-employer defined benefit plans to provide financial and actuarial financial information to the PBGC each year. Pension plans falling below the 80% “at-risk” funding target attainment percentage (4010 FTAP) must provide specified information via an electronic ERISA Section 4010 filing.
The PBGC is authorized to assess a penalty for failing to make this filing. In January 2023, this penalty was increased to a maximum of $2,586 for each day a filing is overdue. In addition to filing penalties, ERISA Section 4010 filings generally are unpopular with plan sponsors for several reasons:
TECHNICAL UPDATE NUMBER 23-1
In the Update, the PBGC notes that it expects latest “atypical and almost unprecedented” market conditions to affect the liability and asset measures that determine whether a 4010 filing is required. These conditions may cause many defined benefit plans to have a 4010 FTAP below 80%, triggering an ERISA Section 4010 reporting requirement. To provide relief, the PBGC will provide a one-time waiver of the ERISA Section 4010 filing requirements if all of the following conditions are met:
To utilize this relief, a plan sponsor must notify the PBGC no later than 15 days before the date the ERISA Section 4010 filing would have been due if not for the waiver. Entities using the waiver must send an email to [email protected] with the subject line “Technical Update 23-1 Waiver.” Additional information about filing can be found on PBGC’s 4010 reporting webpage.
© 2023 McDermott Will & EmeryNational Law Review, Volume XIII, Number 227