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PENSION LAW SCRUTINIZED IN MAXWELL CASE AFTERMATH

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LONDON-One of the most pressing questions arising from the recent acquittals in the Maxwell pension fraud trial is whether the U.K. Pensions Act 1995-the passage of which was influenced by the Maxwell case-will ensure the safety of pensions.

After a shortfall of about 440 million ($666.4 million) was found in the pensions of some 30,000 Maxwell company employees following the mysterious death of media tycoon Robert Maxwell in November 1991, the U.K. government was pushed into reforming pension legislation and overhauling financial services regulation.

Among the main recommendations of the Pension Act, which will go into effect in a little more than a year's time, are:

Creation of a compensation program to pay benefits when fraud has occurred.

A requirement for programs to be funded at a minimum level.

The appointment of member-nominated trustees.

Creation of a pension regulator.

Despite these recommendations, however, some experts-including U.K. pension fund managers, accountants and the National Assn. of Pension Funds-consider the reforms insufficient.

Money disappeared from the Maxwell pensions because Robert Maxwell considered pension fund assets as no different than any other corporate assets to be used to fund any corporate activities, evidence in the trial showed. Shares owned by the funds were allegedly used to raise loans to prop up Robert Maxwell Group P.L.C., the financially ailing holding company for Maxwell family interests.

At the trial, two of his sons, Kevin and Ian Maxwell, who were directors of Maxwell companies and of fund manager Bishopsgate Investment Management Ltd., and Larry Trachtenberg, a financial adviser to Robert Maxwell, were found not guilty of conspiring to defraud the pension funds of assets (BI, Jan. 22).

Although the men were acquitted, there is no disputing that assets were missing from the pension funds. The National Assn. of Pension Funds believes the absence of any measures in the Pensions Act to prevent this from happening at other companies is a major omission.

Commenting after the Maxwell acquittals, the NAPF said:"The main question is whether the Pensions Act 1995 can ensure that incidents of this kind do not happen again. An essential element of this is the requirement for custody of investments by regulated custodians independent of the employer. NAPF was particularly disappointed that the government did not accept an amendment to the bill making this provision."

Kenneth Trench, chairman of the Maxwell Pensioners Action Group, also is skeptical that the act will fully fit the bill.

"We should also be aware of the blandishments of government and not be lulled into such a sense of security that we think the new Pensions Act will solve all the problems and rekindle the public's faith in the system," he said.

If the act's proposed compensation in cases of proven fraud had been in place, the not-guilty verdicts in the Maxwell case would have deprived Maxwell pensioners of their right to compensation, Mr. Trench added.

Of the 440 million found to be missing from Maxwell pension funds after Robert Maxwell fell from his yacht and drowned off the Canary Islands in November 1991, most has been recovered. The majority, 276 million ($418 million), came from a global settlement reached with banks and accountants. The money was forthcoming after the contributing parties were pursued by liquidators and accountants appointed to sort out the Maxwell companies' affairs.

As a result, the Maxwell case has contributed to the calls for tighter regulation of the banking and financial services sectors.

Robert Maxwell apparently was able to borrow huge amounts from banks and from his companies' pension funds without any auditors or regulatory authorities becoming concerned. Despite having been declared by U.K. Department of Trade Inspectors as unfit to run a public company in the early 1970s, Mr. Maxwell apparently had unlimited access to the retail financial services business-without having to meet any test of fitness or propriety.

While Prime Minister John Major and his government have declined to comment on the Maxwell trial's outcome, others have not.

Frank Field, Labour Party chairman of the House of Commons social services committee, which had been investigating the Maxwell affair before the trial started, said the acquittals "must cause massive concern" for financial institutions based in the City of London.

Referring to the sums found missing from the pension funds and other Maxwell companies, he said, "If 800 million ($1.21 billion) can disappear and no one is successfully prosecuted, the message to the world is that the City is not nearly as safe a place as we had assumed."

Mr. Field said his committee is considering reopening its investigations into the Maxwell pension funds and calling the brothers back to testify.

Considerable uncertainty overhangs the future of the Serious Fraud Office, which investigated the Maxwell case and brought the unsuccessful prosecution. The Labour Party, which is widely expected to win the next general election, is considering plans to abolish the SFO. It proposes creating a Companies Commission that would take over the SFO's role and the powers of investigation currently held by the Department of Trade and Industry.

While the SFO has successfully brought many fraud prosecutions, it has failed to win convictions in a number of the most publicized and costly cases. The seven-month Maxwell trial cost an estimated 25 million ($37.9 million), which included about 11 million ($16.7 million) in costs to the SFO and an estimated 10 million ($15.1 million) in legal aid to the defendants.

George Staple, SFO director, has resisted calls for his resignation over the Maxwell affair but has since announced that he will stand down when his contract expires in April 1997. He said the decision had nothing to do with the Maxwell case.

Earlier this month, the Institute of Chartered Accountants in England & Wales asked the government to examine ways to combat fraud. It proposed that the profession "re-examine the detection role of the statutory auditor in relation to corporate fraud and be prepared to take a more active stance."