Live from Washington, D.C. it’s Melbinger's Compensation Blog! We’re here at the 25th Annual NASPP Conference and the 14th Annual Executive Compensation Conference exchanging ideas and updates. Many interesting developments and issues have been raised at the conference, which I will blog about throughout the next week.
Among the issues debated is whether companies should adopt a broad, flexible, and comprehensive compensation clawback policy now, before the SEC issues its final rules under Dodd-Frank Act Section 954. Readers may recall that earlier this month, I posted on the need for boards and compensation committees to adopt a serious clawback policy, and take all of the other actions (e.g., amending plan documents and agreements) necessary to enforce such a policy in light of the clawback issues facing Equifax and United Continental (So, You Think You Don’t Need to Worry About Your Clawback Policy Because the SEC Has Not Issued Final Rules?). Importantly, the “clawback” policy should allow the board or committee to require executives to forfeit unpaid compensation, in addition to allowing clawback compensation already paid.
It turns out that not everyone agrees. Some well-respected practitioners whose opinions I deeply respect believe that executives will rebel at attempts to impose a too-strong clawback policy, and that it would not be fair to give the board too much power and discretion over compensation paid out or promised.
Clearly, the process of crafting a policy that allows a compensation clawback or forfeiture under appropriate circumstances, while being fair to executives, requires careful deliberation and drafting. However, on balance, I continue to believe that directors should protect themselves and their companies by adopting a strong policy.