The Advisors' Blog

This blog features wisdom from respected compensation consultants and lawyers

Monthly Archives: May 2016

May 12, 2016

Lawsuits Over Director Pay Plans On the Rise

Broc Romanek, CompensationStandards.com

Here’s the intro from this Bloomberg article:

There has been an uptick in shareholder lawsuits targeting director compensation, putting companies on notice that investors are closely scrutinizing how boards set their own pay. According to a March 28 National Association of Corporate Directors report, there has been a significant amount of litigation over director pay over the last 18 months. “After simmering on the back burner for several years, the issue of director pay administration and governance has been or soon will be appearing on the radar screen at most companies due to various court cases and lawsuits,” said the report, authored by compensation consultant Pearl Meyer.

Companies that are litigating actions over their director pay packages include Chipotle Mexican Grill Inc. and Goldman Sachs Group Inc.

May 11, 2016

UK: ISS Giving 5x More Negative Voting Recommendations (So Far)

Broc Romanek, CompensationStandards.com

Here’s a summary of this Willis Towers Watson memo:

Our analysis of the first 50 FTSE 150 remuneration reports to be published in 2016 reveals more negative voting guidance than last year from the U.K. proxy advisors. And we’ve now seen a handful of U.K. companies fail to gain the support of at least 50% of the votes cast in early 2016 say-on-pay votes.

When compared to the first 50 last year, both Institutional Shareholder Services (ISS) and Institutional Voting Information Service (IVIS) have issued five times more negative voting recommendations:

– ISS “against” recommendations increased from 4% of the first 50 last year to 29% this year.
– IVIS “red” recommendations increased from 3% to 14%.

The top three areas of contention mentioned in negative voting guidance were:

– Unexplained or seemingly unjustified reductions in long-term incentive plan performance targets
– Misalignment of pay and performance in pay outcomes
– Insufficient disclosure of retrospective bonus targets.

Also see this Glass Lewis blog entitled “UK Pay Melee Grows“…

May 10, 2016

Will Mutual Funds Follow Retail Investor Lead on CEO Pay?

Broc Romanek, CompensationStandards.com

After reading the twin studies by Stanford (here’s a blog about them) about how the general public perceives CEO pay negatively, you had to wonder if mutual funds would feel the heat about how they vote on pay packages. This Reuters article entitled “Investors want mutual funds to get tougher on CEO pay” would lead one to believe that could happen…but we’ll see. Here’s the article intro:

The usually close-mouthed Capital Group is speaking up on executive pay – throwing more brickbats than bouquets. In a recent interview, leaders of the $1.4 trillion Los Angeles-based investment manager said they worry about the magnitude of pay for chief executives and question whether corporate boards are using the right benchmarks to determine compensation.

May 9, 2016

Excessive Incentive Pay: SEC Approves 488-Page Proposing Release

Broc Romanek, CompensationStandards.com

On Friday, the SEC became the last of the six financial regulators to approve the 488-page joint agency proposal to prohibit incentive-based compensation that may encourage inappropriate risks by financial institutions under Section 956 of Dodd-Frank. The other agencies are the FDIC, Federal Housing Finance Agency, Federal Reserve Board of Governors, National Credit Union Administration and Office of the Comptroller of the Currency. Here’s the memos I have been posting about the proposal in our “Financial Firms” Practice Area

May 6, 2016

Cap’n Cashbags: Hanging With Stewie

Broc Romanek, CompensationStandards.com

In this 40-second video, Cap’n Cashbags makes small talk with Stewie of “The Family Guy” fame:

May 5, 2016

A Perk With Staying Power: Health Checkups

Broc Romanek, CompensationStandards.com

Recently, the Washington Post ran this article about CEOs and health exams:

Since 2006 — when the Securities and Exchange Commission began requiring companies to disclose more detail about executive compensation — the perks of top managers have been under attack. And under pressure from investors and the fear of embarrassing optics for companies, many have quietly vanished. Country club memberships have all but gone the way of the three-martini lunch. Allowances for company cars? So very 2005. But one perk that has stuck around, and even grown more common, say executive compensation consultants, is the executive physical. The often deluxe check-up allows busy top managers to see a range of doctors and get a battery of tests performed at one time, whether in top-notch medical centers like the Mayo Clinic or luxurious digs such as Canyon Ranch.

In 2008, according to data from the consulting firm Willis Towers Watson, roughly 22 percent of companies in the Fortune 500 said they paid for the perk. By 2013, 32 percent of companies disclosed offering it — and it was the only benefit that grew significantly over those five years, the firm reported. “When you look at executive perquisites over the last five to seven years, companies really pared back,” said Rob Mustich, East Coast managing director of executive compensation for Willis Towers Watson, in an interview. “But the executive physical is one perk that remains common.” An updated report has not been released, but Mustich says the number has remained roughly flat, with about 30 percent offering the perk in 2015, though that number is based on a different sample of companies, the S&P 500. A report by Hay Group found a similar trend in its study of the 300 largest companies, with 40 percent offering the perk in 2014, up from 38 percent in 2009.

Why has this perk held strong? After all, it’s not like executives can’t afford to pay their own way: With median CEO pay reaching $13.6 million in 2015, according to some estimates, $5,000 for a VIP medical visit is pocket change for many top executives. Meanwhile, it’s not as if boards are getting an inside look at the CEO’s health in return: Though CEOs might elect to share the findings of the executive physical, privacy regulations mean the board doesn’t necessarily get to see the results. “The board or the company would have no right to the employee’s protected health information under HIPAA and other privacy rules,” said Robin Schachter, a partner in the tax and executive compensation group of Akin Gump.

The reasons they remain, then, are two-fold. The most obvious one is that a CEO’s health is a huge risk factor. Consider what happened when, just one month after taking the top job at United Airlines, Oscar Munoz was hospitalized after suffering a heart attack. It came in the wake of a corruption probe at the airline that caused his predecessor to resign, and the stock fell three percent before recovering. An interim CEO was installed, and then a few months later, when the company announced Munoz had heart transplant surgery, the stock slipped again. He has returned home and is expected to return to the job early in the second quarter of 2016, the company has announced.

Making sure the CEO gets an efficient, comprehensive, A-to-Z check-up could mean it’s less likely something will be missed. “It’s the difference between a pop quiz and a take-home exam,” said David Wise, U.S. market leader for human resources consulting firm Hay Group, describing the difference between a regular physical and the exhaustive nature of such VIP check-ups. “They pick up things you wouldn’t always expect.” (United’s 2015 proxy, released before Munoz became CEO, shows the company paid for executive physicals; a spokesperson said the company was not disclosing whether Munoz had one.)

The other reason boards continue to offer them is that disclosing the cost of the physical in their proxies lets companies telegraph to investors how much they’re prioritizing the CEO’s health. “That’s probably why it’s one of the few perks that large companies haven’t really let go of,” Wise said. “What they’re really buying is shareholder confidence.” Indeed, consider the CEO of Anadarko Petroleum, R.A. Walker, who was reimbursed $15,868 for the cost of an executive physical in 2014, its proxy states. A spokesperson for the company said in an email that the physicals were “intended to be thorough, relatively low-cost and preventive actions to help ensure early detection and protect the interests of our shareholders.” While Anadarko’s cost may be higher than that of many executive physicals — the median value of an executive physical in 2014 was $2,200, and others companies cite amounts such as $2,700 and $6,406 for the CEOs at Dunkin Brands and Lowe’s, respectively — they still pale in comparison to the cost of benefits like private air travel that tend to raise investors’ hackles.

“CEOs’ health is material,” said Charles Elson, director of the John L. Weinberg Center for Corporate Governance at the University of Delaware, in an interview. And in the grand scheme of executive compensation, “it’s just not very much money. More important, it’s totally relevant.”

Still, how much the perk will continue to stick around isn’t completely clear, as a result of changes to the law under the Affordable Care Act. Guidelines aren’t yet available, but lawyers believe the exception which currently allows companies to pay for high-end diagnostic exams and tests for executives — as long as no treatment is involved — will continue. Where they might run afoul of the new changes, meanwhile, is if the cost of these enhanced physicals brings an executive’s total benefit high enough that it triggers the Cadillac excise tax, said James Napoli, a partner in the employee benefits practice at Seyfarth Shaw. That could cause some companies to stop offering them, he said, while others could simply decide to pay it. “Even if they do trigger the tax, the tax would be somewhat minimal and I think the companies see the value in assuring the executives are healthy,” Napoli said.

Providers of executive physicals report mixed results on their business. Canyon Ranch global sales director Molly Anderson said that inquiries from corporations are up. But they’ve also seen a shift in their business, with more interest in a shorter, two-night program ($4,355 plus the cost of accommodations) and in a less expensive program that focuses on customized wellness issues for executives ($1,615 plus accommodation costs). Still, she said in an interview, “we’re seeing an uptick in companies wanting to invest in their executives.”

James Tuck, manager of the Scripps Executive Health program in San Diego, said they’re not seeing a drop off in returning corporate patients, but they have seen a little more reluctance and caution from potential customers. “Companies are watching how they spend their benefits dollars,” Tuck said. The standard program at Scripps involves a day-long visit that includes visits with an internal medicine doctor, a skin cancer screening with a dermatologist, a range of heart tests, and nutritional, stress and exercise counseling. It runs $3,070 for men and $3,700 for women.

So what information do boards get about CEOs’ health? Recruiters say that executive physicals are not at all common when companies are hiring CEOs. But incoming executives may be asked about it: Open-ended questions might be directed to a candidate about his or her health history, and employment agreements often refer to the appointed CEO acknowledging a clean health history, said Korn Ferry Vice Chairman Steve Mader, in an email.

Meanwhile, good governance advocates say it’s expected that the CEO would share alarming issues they learn about with the board. “I think a good CEO is going to be candid,” Elson said. “If they find something materially wrong, I think [the CEO] has got to report it.” One thing’s for sure: the CEO’s job is only getting more stressful. The globe-trotting nature of the job, the 24/7 hours and the intensity of the work are bound to put more and more pressure on CEOs’ health. As former IBM CEO Sam Palmisano told On Leadership last year, his doctor saw real improvements in his health about a year after leaving the CEO job. “You don’t realize it at the time, because you just do it,” he told On Leadership’s Lillian Cunningham. “You grind away. Everyone wants the organization to be successful, so you work hard. But you forget how much of that you internalize and how much stress it puts into you, and the effects it has on your health over time.”

May 4, 2016

Director Stock Awards: Annual Limits Gaining Steam

Broc Romanek, CompensationStandards.com

Here’s a survey from Willis Towers Watson about how companies have responded to the Calma v. Templeton and Seinfeld v. Slager decisions that dealt with director pay & the related setting-processes…

May 3, 2016

A Novel Format: Our Executive Pay Conferences

Broc Romanek, CompensationStandards.com

We are excited about the upcoming set of our popular conferences – “Proxy Disclosure Conference & Say-on-Pay Workshop” – to be held October 24-25th in Houston and via Live Nationwide Video Webcast. Register now for a 20% reduced rate that expires in just two weeks.

Here are the agendas – 20 panels over two days. You’ll notice that many panels have a new novel feature – a post-panel commentary by different experts than the experts on the panel. For example, after Corp Fin Director Keith Higgins speaks, Meredith Cross & Mark Borges will kibitz on what we just heard from Keith. Think of it as being akin to post-debate analysis on the cable networks. The panels include:

1. Keith Higgins Speaks: The Latest from the SEC
2. SEC Speaks: Post-Panel Commentary
3. The SEC All-Stars: The Bleeding Edge
4. The Proxy Designers Speak: How to Make Disclosure Usable
5. Navigating ISS & Glass Lewis
6. Hot Topics: 50 Practical Nuggets in 60 Minutes
7. Pay-for-Performance Disclosure: Now What
8. P4P: Post-Panel Commentary
9. Creating Effective Clawbacks (& Disclosures)
10. Clawbacks: Post-Panel Commentary
11. Pay Ratio: Now What
12. Pay Ratio: Post-Panel Commentary
13. Pay Ratio: The In-House Perspective
14. Pay-for-Performance: How to Do The Proper Messaging
15. Proxy Access: Tackling the Challenges
16. Proxy Access: Post-Panel Commentary
17. Pledging & Hedging Disclosures: What to Do Now
18. Pledging & Hedging Disclosures: Post-Panel Commentary
19. Dealing with the Complexities of Perks
20. The Big Kahuna: Your Burning Questions Answered

Early Bird Rates – Act by May 20th: Huge changes are afoot for executive compensation practices with pay ratio disclosures on the horizon. We are doing our part to help you address all these changes – and avoid costly pitfalls – by offering a special early bird discount rate to help you attend these critical conferences (both of the Conferences are bundled together with a single price). So register by May 20th to take advantage of the 20% discount.

May 2, 2016

Pay Equity: Ratio of CEO Pay to Other NEOs

Broc Romanek, CompensationStandards.com

Check out this blog by Steve Quinlivan about how some companies have voluntarily disclosed ratios of the CEO’s compensation to other named executive officers…