Having improved financial performance justifies compensation, but what happens to the compensation after a restatement? Generally, risk-taking is necessary and protected by the business judgment rule. Taking risks can result in corporate gains. However, the issue here is the mitigation of risk and the appropriate repercussions thereafter. The argument for a strict liability approach in reforming compensation practices is that the repercussions of risk-taking that results in erroneous gains should be the same. Specifically at issue are the consequences of misstated financial statements. Regardless of intentional or unintentional conduct, a restatement harms shareholders and companies. On one side, a corporation’s growth depends on executive risk-taking and recoupment could promote the status quo. Conversely, implementing a comprehensive compensation plan that encourages prudent risk-taking, and repayment of excess compensation, may increase oversight and internal controls. Based on the authors’ analysis, a “no-fault” strict liability approach will reduce excessive risk-taking and increase an alignment of interests.
I. Background and Early Regulatory Environment
Every few years there is a surge of proposals and legislation to reform executive compensation. An early attempt included the reform of 1992, which emphasized transparency of compensation by including SEC promulgated disclosure rules. A few years later, in response to corporate scandals, Congress passed Sarbanes-Oxley Act of 2002 (“SOX”), which includes provisions for forfeiting executive pay, requiring separation of auditing and accounting services, prohibiting loans to executives, and certifying certain information. Later, in 2006 the SEC amended the disclosure regulations, requiring strict disclosures within the “Compensation Discussion and Analysis” (CD&A). More recently, in 2009 as a result of the financial crisis and bailouts, public dissent over compensation arose as to whether incentives caused excessive risk-taking and therefore the financial crisis itself. As a result, the Dodd-Frank Wall Street Reform and Consumer Protection Act (“DFA”) was proposed and signed into federal law in 2010. Specifically, DFA contains clawback provisions affecting executive compensation plans.
II. Clawback Regulations
Sarbanes-Oxley 2002 Section 304
Once characterized as the most far-reaching reforms, SOX was signed into law on July 30, 2002 by President George W. Bush. SOX mandated reforms to enhance corporate responsibility, combat accounting and corporate fraud, and enhance financial disclosures. The explicit language of Section 304 specifies that the purpose is to punish “misconduct.” Congress created private right of action(s) in other sections of SOX but is silent in Section 304. Therefore, the courts have construed that without an explicit provision there is no implied private right of action under Section 304. As to private settlements in a shareholder derivative suit that releases and indemnifies defendant executives under Section 304, the settlement does not vitiate the SEC rights to pursue separate action. Shareholders ultimately lack standing to assert a claim under Section 304 because reimbursements of compensation can only be made directly to the issuer. Thus, the SEC is responsible to determine what qualifies as proper misconduct and whether to pursue enforcement. Furthermore, the SEC’s authority to recoup bonuses is under their full discretion and what they deem “necessary and appropriate.”
Dodd- Frank Act Section 954
The DFA was signed into law by President Barack Obama on July 21, 2010 (P.L. 111-203). It represents significant change to the American financial regulatory environment since SOX. Specifically, it contained numerous provisions affecting corporate governance, including compensation and disclosures. First, Section 954 expands SOX Section 304’s clawback period by two years, thus requiring executive officers to return three years of bonuses and stock options in excess of what would have been paid when issuers restate financial results based on erroneous data. Second, while SOX Section 304 applies to only the CEO and CFO, the DFA Section 954 applies to “executives,” which expands the pool of affected persons. Lastly, unlike SOX, which required a showing of at least negligence. Section 954 of the DFA requires no misconduct by the executives.
III. Case Studies
Compensation structure provides executives with incentives to place significant weight on short-term stock prices. Strong financial performance leads to high stock prices, where executives can sell stocks at a premium, thereby incentivizing short-term high-risk management decisions. The effect of compensation structure on corporate culture resulted in massive losses based on risk-taking and questionable accounting procedures. Thus, if clawbacks were in place, the companies and shareholders would have been compensated in as much as the excess compensation awarded.
Stephen C. Hilbert (“Hilbert”), the former CEO of Conesco Inc (“Conseco”), an insurance company, made approximately $277 million from 1992 to 1996, making him one of the highest paid CEO’s in that period. Hilbert was considered a hero on Wall Street for his cost savings skills and delivering record profits. Consequently, executive personal fortunes and shareholders’ wealth increased. Soon after, allegations arose regarding accounting fraud. There were four specific occasions where revenue targets were met based on overly optimistic assumptions and misleading accounting. As a result, from 1998 to 2000 Conseco was faced with $1.6 billion in write-downs. Hilbert was paid $53 million when he was ousted in April 2000. Soon after, Conseco filed bankruptcy and the SEC began investigating the accounting policies. Conseco was struggling with $6.5 billion in debt, a net loss of $1.33 billion, ratings downgrades, and the fifth consecutive quarterly loss. A year after emerging from bankruptcy, the restructured Conseco, now known as CNO Financial Group, filed lawsuits seeking to recover $650 million in stock-related loans from Hilbert and other executives. Issues arose to the location of Hilbert’s assets after numerous transfers into trusts to avoid repayment of his obligations. In October 2005, a judge ordered Hilbert to return $62.7 million plus interest.
Since Hilbert, CNO Financial Group Inc., has made few changes as to its performance based compensation packages. In 2011, the increases of performance based bonuses were primarily driven by larger stock awards and long-term-incentive compensation which was a cash bonus based on specific performance measures.
CSK Auto Inc.
In 1997, Maynard Jenkins (“Jenkins”) became CEO of CSK Auto Inc., a national automotive parts company. On July 22, 2009, the SEC filed a complaint against the former CEO to reimburse the company and its shareholders more than $4 million that he received in bonuses and stock sale profits. The complaint alleges CSK filed two restatements due to its fraudulent conduct relating to overstated vendor allowances. From 2002 to 2004, CSK’s fraudulently boosted earnings resulted in inflated revenues by $66 million. During the period, Jenkins made $4.1 million in bonuses and stock sales. Jenkins was charged with violations of SOX Section 304. This was the first action by the SEC seeking reimbursement solely under the dormant Section 304 to recover money from an otherwise innocent individual whose company restated earnings. On a motion to dismiss, the court made an important ruling by denying the motion and deciding the SEC’s attempt to clawback compensation was valid. However, whether the SEC’s new interpretation of the statute can survive constitutional scrutiny after discovery is uncertain. This will be determined by whether the SEC seeks all of Jenkins’ incentive-based compensation or what it believes it can tie to CSK’s misconduct. Based on the ruling, the SEC now has the authority and freedom to clawback bonuses based on accounting restatements regardless of personal accountability.
On November 15, 2011, the SEC announced that Jenkins was to return $2.8 million in bonuses and stock profits, approximately 70 percent of what the SEC initially sought. Additionally, pursuant to the final judgment by the SEC, former CFO Don W. Watson consented to a permanent injunction to reimburse O’Reily Automotive, Inc., which acquired CSK, $646,404.17 in stock profits and bonuses.
On December 6, 2007, a settlement of $468 million was reached with Dr. William W. McGuire (“McGuire”), former CEO of UnitedHealth Group Inc., based on options backdating. The settlement is the first with an individual under SOX Section 304. For approximately 12 years, McGuire caused the company to award compensation in the form of in-the-money stock options to himself and other officers without recording or disclosing the amounts. Allegedly, McGuire looked back over a period and chose option grant dates that benefited him and corresponded with dates of historically low closing prices, thereby resulting in grants of in-the-money options. Further, McGuire personally approved the backdated documents that falsely supported that the options had been granted on earlier dates. Later, UnitedHealth restated its financial statements from 1994 through 2005 and disclosed stock-based compensation errors that totaled $1.526 billion. Without admitting or denying allegations, a settlement was reached whereby McGuire was required to repay UnitedHealth compensation he received from 2003 through 2006, totaling $448 million.
On June 2, 2010, the SEC charged Diebold Inc. (“Diebold”) and three former financial executives for participating in fraudulent accounting to inflate earnings. Further, the SEC filed a separate enforcement action against former CEO Walden O’Dell (“O’Dell”) seeking reimbursement of compensation he received while Diebold was committing accounting fraud. Allegedly, Diebold’s financial management received flash reports comparing its actual earnings to analyst forecasts, then the managers would prepare “opportunity lists” of ways to close the gap between actual results and forecasts. These lists contained manipulative accounting transactions designed to recognize revenue improperly and inflate Diebold’s overall performance. Additionally, Diebold’s fraudulent accounting practices misstated its pre-tax earnings by approximately $127 million. Ultimately, Diebold agreed to a $25 million penalty to settle. O’Dell was not accused of participating in the misconduct, however, this would be irrelevant under SEC’s new interpretation of Section 304.
On July 22, 2010, the SEC charged Dell Inc. (“Dell”) and CEO Michael Dell with failing to disclose material information and fraudulent accounting. According to SEC release, improper accounting was used to falsely show the company was consistently meeting earnings targets. Allegedly, Dell manipulated the earnings because it did not disclose that the large exclusivity payments received from Intel Corporation was the actual reason Dell met its earnings target, rather than resulting from the company’s management and operations. The improper accounting prompted Dell to restate earnings from 2003 to 2007 by $92 million. Yet, the SEC did not clawback pay from Mr. Dell after accusations of fraudulent accounting to pad results. Instead, Mr. Dell was fined $4 million dollars, and Dell agreed to pay $100 million, to settle charges by the SEC.
ArthroCare and Franklin Bank of Houston
In April 2012, the SEC filed two lawsuits pursuant to SOX Section 304 to recoup compensation from former executives of ArthroCare and Franklin Bank of Houston. ArthroCare and its former CEO and CFO are not accused of wrongdoing, but instead two former sales executives that worked below them have been charged with inflating revenue by channel stuffing. Unlike ArthroCare, former CEO and CFO of Franklin Bank of Houston are directly accused of wrongdoing based on misrepresentation of the bank’s underperforming loans. Here, in anticipation of the implementation of the no-fault strict liability approach of DFA Section 954, it seems the SEC is assessing future legal arguments.
JP Morgan Chase
In February of 2012, the New York City Comptroller John C. Liu filed a shareholder request with JPMorgan Chase and Company (“JPMorgan”) seeking tougher clawbacks after it paid more than $100 million over 18 months to settle improper conduct charges tied to mortgage-backed securities. In response, JPMorgan clarified its clawback policy to apply to managers when actions by employees expose the firm to substantial financial or legal liabilities. Thus, its policy covers behavior that contributes to large losses or reputational harm, rather than simply fraud or financial restatements.
After CEO Jamie Dimon collected the biggest payday in 2011, and clarification of its clawback policy, JPMorgan announced a $2 billion trading loss on May 10, 2012 and consequently significantly decreased its stock price. JPMorgan used credit default swaps to make bets on companies credit worthiness. Originally, these positions were designed to be a type of disaster insurance against corporate credit market response to the global economic crisis, but morphed into bets on credit markets improving. Here, the issue is the uncertainty of what specific rules were violated and whether traders ignored clearly stated metrics and policies. Consequently, U.S. bank regulators are reviewing whether executive compensation should be recouped due to its failed hedging strategy. CEO Jamie Dimon and bank regulators faced hearings by lawmakers since the announcement of the losses. In June of 2012, Mr. Dimon testified before the Senate Banking Committee that the board was investigating the trading losses at the chief investment office, and that it was “likely” that compensation would be recovered from executives responsible for the huge losses. In light of the Senate hearing and media attention to the JPMorgan’s losses, this is an opportunity for clawbacks as a remedy to decreased value due to high-risk-taking.
IV. Clawbacks Policies and Employment Agreements
There is a rise in clawback policies in employment agreements. The occurrence of clawback policies increased from 17.6 percent to 84.2 percent from 2006 to 2011 among Fortune 100 companies. Since 2003, the number of clawback provisions in employment agreements have skyrocketed since 2003. Approximately 28 percent of Russell 1000 companies and 40 percent of S&P 500 companies have clawback provisions. Three common types of clawback provisions are performance-based, fraud-based, and non-compete. Performance-based provisions apply to executives who receive incentive compensation based on misstated financial statements. Fraud-based provisions apply to fraudulent activity causing restatement, legal costs, or penalties. Lastly, non-compete provisions apply to violations of restrictive covenants. Further, in employment contracts there can be either retroactive or prospective clawback provisions. Retroactive clawbacks are those that are imposed after the contractual right to the bonuses has arisen and benefits awarded. Legislation such as SOX Section 304 and DFA Section 954 are forms of retroactive clawbacks. Whereas, prospective clawbacks are introduced into contracts before any claim of right to the benefits has arisen.
An employment contract, like all contracts, cannot predict all future contingencies. However, a clawback mechanism can provide for optimal contracting situations. Without the mechanism, incentive compensation based on performance outcomes that can be manipulated provides a less optimal situation due to the disconnect between shareholder wealth and executive accountability. There are many benefits in having prospective clawback clauses in contracts. First, a benefit to the clawback clause (a negotiated term in the employment contract) is that it provides private remedies without federal agency involvement. Second, a related benefit is that it provides a legal basis and contractual obligation to force executives to hand over compensation. Third, there can be less uncertainty of satisfying legal intent under SOX or DFA. As individually negotiated terms, the trigger to recoupment can be based on variations that are either broadly or narrowly construed. The trigger events can be unintentional misstated financial statements, fraudulent conduct, SEC penalties or settlement, risky decisions leading to significant loss, corporate reputation harm, or violations of corporate policy that results in write-downs. By voluntarily adopting prospective clawback provisions in employment contracts, companies can ultimately improve the current disconnect between performance and pay, yet negotiate variations to compensate the transfer of risk onto the executive.
VI. Recommendations and Conclusion
DFA was enacted in response to public anger over Wall Street’s excessive risk taking and compensation practices after the 2008 financial crisis. Misstated financial statements cause write-downs and restatements, costing issuers millions to billions of dollars, increasing their debt, and causing credit downgrades that ultimately affects the bottom line, the shareholders, and market integrity. Although there may be disagreement between knowingly or innocently receiving compensation after restated earnings, arguably the repercussions should be the same.
There is confusion as to the requisite mens rea (an awareness that one’s conduct is criminal) to justify SEC recoupment of compensation. Ultimately, businesses expand and grow from risk. Executives should have no claim to compensation that was endowed under a mistake, regardless of his/her involvement. Bonuses are normally linked to financial performance of the company. Thus, a bonus that was based on figures that later were restated because of fraud or mistake is an unjust enrichment that should be recouped. The remedy after a restatement occurs should be that companies are put in the same position had the financials been correct in the first place.
As to issues concerning locating the excess compensation, transferring assets, or time restrictions for repayment, this can be addressed by a comprehensive clawback corporate policy (see Appendix A). A clear corporate policy is necessary to discourage short-term mentality and encourage an alignment of interests. Ultimately, a company may develop three types of corporate clawback policies, discretionary, mandatory, or mixed. Based on the aforementioned case studies and DFA Section 954, a mandatory recoupment policy should be implemented, which requires only a financial misstatement and no intent necessary. Therefore, there should be a blanket policy for all restatements that negatively affect the company finances and reputation. By disclosing a comprehensive clawback policy, a company can show that they are taking proactive measures to ensure alignment of interests with less risk-taking and compensatory remedies. A corporate clawback policy should state an inventory of current incentive plans that are subject to clawback, which “current and former executives” are subject to the clawback, and the triggers that would require repayment.
Another option to consider is holding certain incentive compensation in escrow accounts that will be released on a rolling basis or increasing the period to hold deferred compensation until risk of forfeiture has expired. Realistically, once compensation is paid, its recovery can be uncertain even where there is a contractual right. For example, Hilbert was responsible for $179 million in bank loans backed by Conseco when he was ousted and his shares at the time were only worth $61 million. The SEC should require issuers to have clawback policies with specified time restrictions to repay excess compensation based on incorrect financial statements. The authors recommendation is a compensation structure based on a system that escrows compensation for a set period of years and requiring a certain percentage of restricted stock and deferred cash in the escrow account at all times, thereby both preventing executives from taking short-term risk and acting as a rebalancing tool to maintain a constant percentage of compensation in cash and stock. The executive would, therefore, always maintain sufficient equity in the company, even if the stock price falls. Another option is to require reloading stock into the escrow account when the stock price decreases so that executives maintain a vested interest in the company. Additionally, another change should be to increase the length executives must wait before they can cash in their options and shares, where vesting gradually occurs even after retirement. These changes would promote long-term incentives, less emphasis on stock prices, and overall more prudent risk taking.
The problem here is that clawbacks are evolving, often unused, and rarely disclosed. Corporations depend on the competitiveness of their compensation packages when finding high-level human capital. Hiring the right and superior executives can be a competitive advantage. Further, the SEC must provide the extent to which clawback provisions should modify existing compensation plans. Corporations utilize their competitors’ compensation structures as a basis of their own incentive plans and employment contracts. However, relying on the status quo has led to excessive risk-taking and misconduct. While there has been a cost in implementing clawback terms in employment contracts to corporations in the form of increased base salaries, the authors believe there can be a long-term economic and societal gain. Essentially, the issuer and shareholders want sustainable growth, and an effective clawback policy would encourage calculated risk and alignment of executive interest. If alignment does not exist, the clawback policy can act as a self-correcting tool. Thus where there is a restatement, a clawback occurs to compensate the issuer and shareholders.
Click here for APPENDIX A: Example of “Compensation Recoupment Policy”
 Nelson Schwartz, Public Exit From Goldman Raises Doubt Over a New Ethic, N.Y. Times, March 15, 2012, at B1.
 U.S. Dep’t of the Treasury, Financial Regulatory Reform: A New Foundation 29 (2009), available at http:// www.financialstability.gov/docs/regs/FinalReport_web.pdf [hereinafter Financial Regulatory Reform”].
 U.S. Dep’t of the Treasury, Financial Regulatory Reform: A New Foundation 29 (2009), available at http:// www.financialstability.gov/docs/regs/FinalReport_web.pdf [hereinafter Financial Regulatory Reform”].
 Robert E. Scully Jr., Executive Compensation, the Business Judgment, and the Doff-Frank Act: Back to the Future for Private Litigation?, (February 18, 2012, 12:30 PM), http://www.sec.gov/comments/df-title-ix/executive-compensation/executivecompensation-58.pdf.
 See Susan Lorde Martin, Executive Compensation: Reining in Runaway Abuses–Again, 41 U.S.F. L. Rev. 147, 147-148 (2006).
 Securities and Exchange Commission, http://www.sec.gov/divisions/corpfin/guidance/execcomp402interp.htm (last visited Mar. 13, 2011).
 Sarbanes-Oxley Act- A Guide to the Sarbanes-Oxley Act, http://www.soxlaw.com/ (last visited Mar. 13, 2011).
 Securities and Exchange Commission, http://www.sec.gov/news/press/2006/2006-123.htm (last visited Mar. 13, 2011).
 “Bill Summary & Status – 111th Congress (2009 – 2010) – H.R.4173 – All Information – THOMAS (Library of Congress)”. Library of Congress. Retrieved February 28, 2011.
 Securities and Exchange Commission, http://www.sec.gov/about/laws.shtml#sox2002 (last visited Mar. 15, 2011).
 In re AFC Enters., 224 F.R.D. 515 (N.D. Ga. 2004); 15 USCS § 7243
 Diaz v. Davis (In re Digimarc Corp. Derivative Litig.), 549 F.3d 1223 (9th Cir. Or. 2008)
 Cohen v. Viray, 622 F.3d 188 (2d Cir. 2010)
 In re Qwest Communs. Int’l, Inc. Sec. Litig., 387 F. Supp. 2d 1130 (D. Colo. 2005)
 “Bill Summary & Status – 111th Congress (2009 – 2010) – H.R.4173 – All Information – THOMAS (Library of Congress)”. Library of Congress. Retrieved July 22, 2010.
 111 P.L. 203, 954
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 Joshua Gallu, Beazer’s McCarthy to Return $6.5 Million in Clawback, Bloomberg.com, Mar 3, 2011, http://www.bloomberg.com/news/2011-03-03/beazer-ceo-to-give-back-6-5-million-in-compensation-to-resolve-sec-claims.html.
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 Liz Moyer, Goldman Breezes Through Protest-Free Marketing, WSJ.com, May 24, 2012, http://online.wsj.com/article/SB10001424052702304707604577424302021421424.html.
 Suzanne Kapner & Aaron Lucchetti, Pay Clawbacks Raise Knotty Issues, WSJ.com, May 17, 2012, http://online.wsj.com/article/SB10001424052702303879604577408521139754802.html.
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 Dave Clark & Alexandra Alper, Will Chase Execs Have to Pay for Trading Error, Reuters.com, Jun. 6, 2012, http://www.reuters.com/article/2012/06/05/us-jpmorgan-occ-idUSBRE8541A420120605.
 Ben Protess, JPMorgan’s Chief Says Clawback Efforts Are ‘Likely’, NYTimes.com, Jun. 13, 2012, http://dealbook.nytimes.com/2012/06/13/jpmorgans-chief-says-clawback-attempts-are-likely/
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 Id. at 390.
 Douglas McIntyre, Are CEO’s Paid to Much? Not All of Them, Dailyfinance.com, Apr. 8, 2011, http://www.dailyfinance.com/story/company-news/ceo-pay-jpmorgan-jamie-dimon-executive-compensation-bonus/19906856/.