SEC Implements Dodd-Frank Act Executive Compensation Clawbacks: What It Could Mean for Your Business

SEC Implements Dodd-Frank Act Executive Compensation Clawbacks: What It Could Mean for Your Business

by Matthew Perreault
April 12, 2023

A recently implemented SEC requirement could change the way your company’s accounting mistakes are scrutinized — and potentially threaten your organization’s stock exchange listing.

Intended to increase corporate governance and executive accountability, the SEC’s finalized ruling takes aim at excess executive compensation, looking to curb incorrectly awarded executive bonuses by adopting incentive-based compensation clawback provisions of the Dodd-Frank Act.

These clawback provisions could change the way your organization approaches executive compensation and may require you to take immediate action. Here’s a breakdown of what you need to know and how to start preparing.

What You Need to Know About the Executive Compensation Clawback Rule

The SEC’s final rule, effective January 2023, requires publicly traded companies to implement policies that “claw back” bonuses paid to executives in the event of erroneously awarded compensation that is tied to misstated financial statements . Compensation must have been received by an executive officer during the three-year lookback period preceding the date an accounting statement was required.

According to the final rule, both “little r” restatements (i.e., revisions that are immaterial to prior period financial restatements) and “big R” restatements (i.e., corrections of material errors that require an organization to restate and reissue previously issued financial statements) may trigger clawbacks.

Who the ruling affects

The clawback policy applies to current and former executive officers of all publicly traded companies, including emerging growth companies, controlled companies, debt issuers and other nonequity securities (with limited exceptions). The SEC defines “executive officer” to include an organization’s president, principal financial officer, principal accounting officer, any vice president who oversees a principal business unit, division or function and any other officer or individual who performs a policy-making function. Organizations are prohibited from insuring or indemnifying an executive officer against the loss of erroneously reported compensation.

What constitutes incentive-based compensation

The rule defines “incentive-based compensation” as “any compensation that is granted, earned or vested based wholly or in part upon the attainment of any financial reporting measure…any incentive-based compensation recovered under the final rules is compensation that an executive officer would not have been entitled to receive had the financial statements been accurately presented.” So, for example, bonuses paid from a bonus pool tied wholly or partially to financial performance would be subject to the clawback rule; salary increases and bonuses awarded based solely on employment milestones or subjective merit standards would not be.

Deadlines to keep in mind

Though the executive compensation clawback rule became effective January 27, 2023, your organization still has time to become compliant. Be sure you are aware of the following dates and deadlines:

  • February 22, 2023: Both the New York Stock Exchange and NASDAQ published the new stock listing proposals on their respective websites that comply with the final rule. These national stock exchanges are self-regulatory organizations, but they still need to file proposed rules with the SEC. After the commission receives comments and analyzes them, it will either approve, reject or ask the exchanges to modify. However, as of April 7, the SEC has yet to post them on its rulemaking webpage to solicit comment. Once published, the public will have 21 days to comment.
  • November 28, 2023: This is the latest date for exchanges’ listing standards to become effective. All incentive-based executive compensation must be subject to a compliant clawback policy by this date. Additionally, clawback disclosure requirements must be filed with all proxy statements, information statements and annual reports on or after this date.
  • January 27, 2024 (60 days after the latest date that listing standards could become effective): If listing standards became effective on November 28, this is the last possible date for a publicly traded company to adopt a compliant clawback policy.

Failure to comply with the final rule by the appropriate dates above could result in a delisting of your organization.

How to Prepare

Ultimately, if your organization is subject to the final rule, you will need to take action in two key ways:

  1. Develop and implement clawback policies that detail how your organization will recoup any incorrectly awarded incentive-based compensation from executive officers.
  2. Disclose your policies by filing them as exhibits to your annual report, as well as in proxy and information statements. You will also be required to make disclosures via check boxes on forms 10-K, 20-F and 40-F, as applicable, that indicate whether the financial statements included in the report reflect any corrections made to previously issued financial statements. The check boxes must also disclose whether these error corrections involve restatements that require a compensation recovery analysis pursuant to your company’s clawback policy.

Begin by reviewing your organization’s current incentive programs, compensation agreements and awards. Take an inventory of all programs that award executive compensation tied to financial metrics, compare the new clawback policies to your organization’s existing policies and consider whether your policies need revisions to minimize your clawback risk amid the new executive compensation rules.

Additionally, make sure your board, executives, compliance personnel and other key stakeholders are properly educated on the final rule’s requirements and are on the same page with how performance metrics and incentive compensation may change because of the new mandates.

Bottom Line

The Dodd-Frank Act executive compensation clawback final rule is intended to align organizations’ executive compensation more closely with actual financial performance. While this may mean that your company must rethink its incentive compensation policies, preparing for the impending policy changes ahead of the upcoming deadlines will ensure that you remain compliant with SEC guidelines — and ultimately mitigate financial risk for your organization.

Contact our financial statement audit experts to learn more about the Dodd-Frank executive compensation clawback rules or to explore other ways to take control of your business operations and your organization’s future.

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