Conclusions/Speculation

Without transparent investigations, firm conclusions are impossible.  Weak inferences have to be made from what is included or omitted from the Determination.  One can note that the Determination does not rule out that:

- The consultation with Leading Counsel which led to one trustee-director verbally explaining the opinion to the rest occurred before the Trust knew of the non-pensionable supplement proposals.

- The nonconflicted trustee-directors received their first outline of the non-pensionable supplement proposals only late on Jan 6^th 2006, by email.

- Just one trustee-director, without authority or direction from the Trustee, negotiated with Randy McDonald on Sunday 8^th Jan 2006.

- The trustee-directors were faced with a package deal on the 19^th Jan 2006.

- The trustee-directors first learned on the 19^th that anything other than the package deal would delay indefinitely the £500M+ due to the fund.

- Documentation of Leading Counsel’s opinion occurred months after the Trustee had made its decisions.  That opinion described the employer position as “I cannot afford to make it pensionable”, although the Trustee had never decided whether the unchanged scheme was affordable or not.

- IBM retained control of actuarial assumptions, asset allocation and scheme design through the Guarantee and its associated agreements.

Whether the Trustee could have considered what it should have considered within the constraints of that scenario is a subject on which there can be disagreement with the Ombudsman.

There can also be disagreement on whether some scheme members would have made more successful choices in 2006 if they had been correctly briefed on the content of the Guarantee, the agreements associated with the Guarantee, the contractual nature of the Enhanced M-Plan versus C-Plan and what it meant when they were told “Meets Trustee’s long term stability and funding objectives”.