The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

An ‘11th hour’ bid to prevent settlement of the long-running City Markets pension fund controversy seeks to overturn a court Order giving hundreds of ex-employees “more than they are entitled to”.

James Thompson, the attorney representing one group of plan beneficiaries, questioned why a former City Markets manager and his attorneys are seeking to overturn an Order that requires all pension beneficiaries to be made 100 per cent ‘whole’ by today.

But Whanslaw Turnquest, City Markets’ former chief inventory control officer, and his attorneys, told Tribune Business they wanted a full valuation and accounting of all assets in the Bahamas Supermarkets Ltd Profit Sharing Retirement Plan.

Mr Turnquest, who acts as the Bahamas Supermarkets Former Employees’ committee’s executive Board chairman, said neither Mr Thompson nor the union that represented former City Markets workers aced for him.

Alleging that 231 ex-City Markets employees were also claiming that their interests were not represented by the legal settlement, Mr Turnquest alleged in an April 10, 2015, affidavit that he and his committee had “been shocked by what has occurred” in respect to the settlement.

He and his attorney, Rouschard Martin of Martin & Martin, have now filed a summons seeking the Supreme Court’s permission to join Mr Turnquest as a plaintiff to the pension fund action.

They also want to amend the case so that “a claim for severance pay and breach of trust and fiduciary duties” is included, and are asking the Supreme Court to “delay the approval” of the January 16, 2016, Order that gave rise to the pension fund settlement.

And, finally, they want Mr Martin to be listed as the ‘attorney of record’ for Mr Turnquest and the former employees he purports to represent.

This is effectively an attempt to remove Mr Thompson from the case, but he told Tribune Business: “Just because they’ve filed a motion doesn’t mean there’s a change. As far as I’m concerned, I’m still the attorney of record.”

Mr Thompson is challenging Mr Turnquest’s move via a May 22, 2015, application to the Supreme Court for permission to cross-examine the latter. He is alleging that Mr Turnquest’s April 10 affidavit “is in substance false, and contains false statements, and was intended to mislead” the Supreme Court.

Mr Thompson also questioned why Mr Turnquest and his attorneys were seeking to intervene at such a late stage, given that the January 16 Order provided for all City Markets pension beneficiaries to be paid-out in full by today.

That Order, which has been seen by Tribune Business, stipulates that the settlement be “enforceable for the benefit of all beneficiaries” of the City Markets pension plan, not just the groups represented by Mr Thompson and the union.

It also agreed that the pension fund trustees “wind-up and terminate” the plan by June 1, 2015, although they could apply to extend the time.

And the wind-up is to involve the sale of all pension plan assets, with the proceeds applied to the plan and used to pay-out ex-staff beneficiaries according to what they are owed.

The trustees have had to report to the Supreme Court monthly, while the Order also allowed the Bahamas Commercial Stores, Supermarkets and Warehouse Workers Union to be added as a plaintiff for the benefit of beneficiaries it was representing.

“Whanslaw Turnquest and his lawyer came in after the matter was considered settled,” Mr Thompson told Tribune Business. “The January 16 settlement Order was signed by the trustees, their lawyers, myself and the union.

“They’re [Mr Turnquest] applying to have the Order set aside, effectively. They want to re-open the case and go back to court.

“We were all in the process of executing the Order. The Order was to pay out all the beneficiaries of the plan, not just the plaintiffs,” he added.

“The Order was to terminate the plan and pay out to beneficiaries accordingly. Why would someone want to come in in May and prevent that from happening? The application is in effect to set aside the Order.

“That’s what they’re trying to do; prevent the settlement. Can they give us some good reason why it should not go through? The settlement gave the beneficiaries more than they were entitled to under the plan.”

Mr Thompson said the Bahamas Supermarkets Ltd Profit Sharing Retirement Plan’s provisions did not allow for it to be terminated, or the assets (proceeds from their sale) to be distributed to beneficiaries.

He added that the plan only provided for beneficiaries to be paid via an annual annuity, yet the terms of the January 16 Order (settlement) would allow ex-City Markets staff to receive a one-time lump sum payment if they chose. Thus, according to Mr Thompson, the settlement has given beneficiaries an extra entitlement.

Confirming that the plan trustees had been reporting to the Supreme Court since January, Mr Thompson added of Mr Turnquest’s application: “We’re not concerned. There is an agreement, and the trustees have lived up to that agreement to pay the people out according to the Order.

“We cannot see why anyone would apply to set that aside. It’s taken us many, many years” to reach a settlement.

Mr Thompson acknowledged the “frustrating” four-year wait for ex-City Markets staff beneficiaries to receive what was due to them, adding that he was set to meet with his clients on Wednesday to brief them on the latest developments.

However, Mr Martin, the attorney for Mr Turnquest, said his client and the Former Employees’ committee were focused on identifying and obtaining proper valuations for all assets in the pension plan.

He said their application is due to be heard on July 3 in the Supreme Court, adding that the problem was a lack of confidence and trust in the persons dealing with the City Markets pension plan.

“They feel as if they’re not being protected in terms of their entitlement,” Mr Martin said of his clients. “We’re trying to get this cleared up, trying to make sure the underlying assets are accounted for, what’s in the bank account and where assets have been transferred to.

“Most important here, the union came into the picture after almost a two-year hiatus, seeking to represent people who don’t want them to represent them.”

His clients fall into just such a group, and Mr Turnquest criticised the plan trustees for failing to secure what was the plan’s main asset - the former City Markets head office and warehouse on the East-West Highway, which recently suffered a serious fire.

However, Tribune Business previously revealed that City Markets’ last principals, the Finlayson family, exchanged the pension plan’s interest in the former head office for preference shares in their Associated Bahamian Distillers and Brewers (ABDAB).

The deal effectively switched the security for the former supermarket chain’s pension beneficiaries from illiquid real estate assets that have proven “impossible” to sell to a more liquid investment.

With no buyer found for the former City Markets head office on East-West Highway, the pension beneficiaries -via the trade union - were in theory given the opportunity to receive dividend payments on those preference shares and, potentially, a cash payout of everything owed to them.

Mr Turnquest, though, said he and those covered by the Former Employees’ Committee did not accept the transfer of their pension plan entitlements via the ABDAB preference share deal.

Mark Finlayson, in an e-mailed reply to Tribune Business, said: “Earlier this year, Mr Thompson and the union took control of the [pension] trust assets.

“Though their scope has been limited by the court, all requests for information must be addressed to Mr Thompson and Williams.”

Dennis Williams is the attorney representing the union.