Think again. Less than 24 hours after news of the data breach at Equifax was reported, we saw politicians and the media demanding compensation clawbacks. These groups have neither the tolerance for, nor an understanding of, the need for nuance or investigation. For this reason, we expect the board of Equifax to announce soon its decision on whether to claw back compensation from key executives, particularly the former CEO and former chief security officer, who have both left the company since the news.
While we wait to hear from the board, let’s look at what might happen if a company does not claw back compensation.
In September 2015, the United Continental board ousted its CEO after a government investigation into a bribery scheme. The alleged scheme involved the Port Authority of New York and New Jersey approving development projects at Newark Airport in exchange for United’s agreement to institute and continue a money-losing direct flight to Columbia, South Carolina, where the Port Authority Chairman had a vacation home. The company was forced to pay more than $4.5 million in government penalties as a result of the investigation.
According to an 8-K filing in 2015, the company and the CEO entered into a Separation Agreement under which he received $37 million in equity, severance, and benefits. The Separation Agreement also provided that “all compensation recovery, forfeiture and clawback related provision in any policy, plan, award or award notice . . . will continue in full force and effect after the Separation Date.”
In May 2017, a shareholder filed a shareholder derivative action in Delaware. In City of Tamarac Firefighters pension Fund Trust v. Corvi, plaintiffs sued the directors of the company, claiming that the directors breached their fiduciary duties of loyalty and care by failing to claw back compensation amounts from the outgoing CEO and wasted corporate assets by instead paying him $37 million in equity, severance, and benefits. The plaintiffs also sued the former CEO for unjust enrichment.
No decision has been made in this case, and so far, we have only the allegations from the complaint. We do not know whether or not the company had adopted a compensation clawback policy that would have allowed it to claw back certain compensation, or whether it had a policy but chose not to enforce it. However, this shareholder demand and the lawsuit may be indicative of what companies and boards can expect if they do not (i) adopt a compensation clawback policy that gives them the legal right to withhold or claw back a variety of forms of compensation, or (ii) fail to vigorously enforce such a policy.