SEC Re-Visits Executive Compensation Clawback Rules
Posted by Securities Attorney Laura Anthony | December 1, 2021

As expected, on October 14, 2021, the SEC re-opened the comment period on proposed rules on listing standards for the recovery of erroneously awarded executive compensation (“Clawback Rules”).  The Clawback Rules would implement Section 954 of the Dodd-Frank Act and require that national securities exchanges require disclosure of policies regarding and mandating clawback of compensation under certain circumstances as a listing qualification. The proposed rules were first published in July 2015 (see HERE) and have moved around on the SEC semiannual regulatory agenda from proposed to long-term and back again for years, but finally seem to be moving forward.  Although the proposed rule remains unchanged from the July 2015 version, the SEC has added a few questions for comment in its re-opening release.


There are currently existing rules which require the recovery of executive compensation and disclosure of such policies.  In particular, Section 304 of the Sarbanes-Oxley Act of 2002 (“SOX”) requires the CEO and CFO to reimburse the company for any bonus or other incentive-based or equity compensation for the prior 12 months, and any profits received from the sale of securities in that time period, if a company is required to prepare a restatement as a result of the misconduct related to financial reporting.  In February 2021, the SEC invoked the rule in an enforcement action which it had rarely, if ever, had done before.

There are also rules which require disclosure related to executive compensation, including Clawback provisions.  The Compensation Discussion and Analysis (CD&A) required by Item 402(b) requires an explanation of “all material elements of the registrant’s compensation of the named executive officers” and requires general discussions of performance including disclosure of any bonus structures and performance-based compensation and company policies and decisions regarding the adjustment or recovery of awards and payments to such named executive officers.

The proposed Clawback Rules require the recovery of executive compensation following an accounting restatement, which compensation would not have been paid under the restated financial statements.  Indemnification or insurance reimbursement would be prohibited. In addition to requiring companies to adopt written policies and procedures and to disclose same, the proposed Clawback Rules remove fault from the consideration of recovery, broaden the effected executives to include all named executive officers and extend the existing look-back period.

Proposed Rule

Section 954 of the Dodd-Frank Act added Section 10D to the Exchange Act, which provides that the SEC require national securities exchanges and national securities associations to prohibit the listing of any security of an issuer that does not develop and implement a policy providing for the recovery of erroneously awarded compensation and for disclosure of that policy. A company would be subject to delisting if it does not adopt a compensation recovery policy that complies with the applicable listing standard, disclose the policy in accordance with SEC rules, and comply with the policy’s recovery provisions.

Specifically, the Proposed Rules would:

  • Require national securities exchanges and associations to establish listing standards that require listed companies to adopt and comply with a compensation recovery policy in which recovery is required from current and former executive officers who received incentive-based compensation during the three fiscal years preceding the date on which the company is required to prepare an accounting restatement to correct a material error. The recovery must be on a “no fault” basis without regard to whether any misconduct occurred, or the executive officer had responsibility for the misstated financial statements.
  • Require that the amount of incentive-based compensation to be recovered be the amount the executive received over what they would have received based on the restated financial statement.
  • Require a company to seek recovery except to the extent it would be impracticable to do so, such as where the recovery cost would exceed the amount to be recovered, or for foreign issuers, where recovery would violate home country laws.
  • Prohibit companies from indemnifying current and former executive officers against the loss of recoverable incentive-based compensation.
  • Require the filing of the compensation recovery policy as an exhibit to the company’s Exchange Act annual report.
  • Require specific disclosure in the executive compensation disclosure section of annual reports and proxy statements, with XBRL tagging, if the company completed a restatement that required recovery in the past fiscal year or there is any recoverable amounts outstanding from any prior year.

The implementation and impact of the rule will rest on the definitions of incentive-based compensation and executive officers.  The proposed rule defines “incentive-based compensation” as any compensation that is granted, earned, or vested based wholly or in part upon the attainment of a financial reporting measure, and further defining “financial reporting measure” as a measure that is determined and presented in accordance with the accounting principles used in preparing the issuer’s financial statements, any measure derived wholly or in part from such financial information, and stock price and total shareholder return. For incentive-based compensation based on stock price or total shareholder return, issuers would be permitted to use a reasonable estimate of the effect of the restatement on the applicable measure to determine the amount to be recovered.

The proposed rule defines an “executive officer” to include the company’s president, principal financial officer, principal accounting officer, any vice-president in charge of a principal business unit, division or function, and any other person who performs policy-making functions for the company and otherwise conforms to the full scope of the Exchange Act Section 16 definition.

The proposed Clawback Rules apply to all listed issuers and all securities, with limited exceptions.  The proposed rules’ limited exemptions include security future products, standardized options and the securities of certain registered investment companies.

Restatements Triggering Application of Recovery Policy

The Clawback Rules require issuers to adopt and comply with policies that require recovery “in the event that the issuer is required to prepare an accounting restatement due to the material noncompliance of the issuer with any financial reporting requirement under the securities laws.”  The SEC includes any error that is material to the financial statements as “material noncompliance.”  Accordingly, the Clawback Rules provide that issuers adopt and comply with a written policy providing that in the event the issuer is required to prepare a restatement to correct an error that is material to previously issued financial statements, the obligation to prepare the restatement would trigger application of the recovery policy.

The SEC clarifies that the following changes to financial statements would not trigger the recovery policy: (i) the retrospective application of a change in accounting policy; (ii) retrospective revision to a reportable division due to a company’s internal reorganization; (iii) retrospective reclassification due to a discontinued operation; (iv) retrospective application of a change in reporting entity such as from a reorganization or change in control; (v) retrospective adjustment to provisional amounts in connection with a prior business combination; or (vi) retrospective revision for stock splits.

Applicable Date and Time Period

The Clawback Rules would require the recovery of incentive-based compensation during the three fiscal years preceding the date on which the company is required to prepare an accounting restatement. The date on which the company is required to prepare an accounting restatement is the earlier of (i) the date the board of directors or officers of the company, if board authorization is not required, conclude that the company’s previously issued financial statements contain a material error; or (ii) the date a court, regulator or other legally authorized body directs the company to restate its previously issued financial statements to correct a material error.

Compliance with Recovery Policy

Under the proposed Clawback Rules, a company would be subject to delisting if it does not (i) adopt a compensation recovery policy that complies with the rules; (ii) disclose the policy in accordance with the rules, including XBRL tagging; and (iii) comply with its written compensation recovery policy.

Transition and Timing

The Clawback Rules would require that each national exchange propose new listing standards implementing the rules no later than 90 days following SEC publication of final rules; that such standards take effect no later than one year following SEC publication of final rules; and that each company adopt the recovery policy required by the rules no later than 60 days following the date on which the exchanges’ rules become effective.

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