Recent corporate scandals hammer home the importance of board oversight for pay-related risks. This NACD article covers this area – and suggests asking these 6 questions:
1. Do we have an appropriate balance of metrics?
2. Are we calibrating goals & upside opportunity appropriately?
3. Are we considering the quality of performance?
4. How robust are the controls on data that is used as inputs to the compensation plan?
5. How are our board’s committees collaborating on developing & monitoring incentive plans?
In this 26-minute podcast, former CEO Steven Clifford discusses the problems with CEO pay – and describes his plan about how to fix it (as noted in his new book “The CEO Pay Machine“), including:
1. Why did you write this book?
2. Can you explain the role of boards in setting pay – and how they might be “collectively” delusional?
3. Why might CEOs not be as important as many think they are?
4. Can you get into the topic of “peer groups” and how CEOs may not be portable?
5. How can excessive pay actually be a de-motivator?
6. I’ve always argued that any pay is “pay-for-performance” by definition. How are most P4P arrangements detrimental to a company’s long-term health?
7. How is “shareholder alignment” not the gold standard that many think it is?
8. What is your plan to fix the “CEO Pay Machine”?
This podcast is also posted as part of my “Big Legal Minds” podcast series. Remember that these podcasts are also available on iTunes or Google Play. Use the “My Podcasts” app on your iPhone and search for “Big Legal Minds”; you can subscribe to the feed so that any new podcast automatically downloads…
Here’s an excerpt from this blog by Steve Seelig & Puneet Arora of Willis Towers Watson:
If the SEC follows the lead of the Department of Labor (DOL), which recently decided it will not further delay its controversial fiduciary rule, we may not get a delay of CEO pay ratio. In essence, the DOL determined that as a matter of regulatory procedure, it cannot move to delay a final rule without reopening the rulemaking process for additional comments.
Regarding pay ratio, we think Acting Chairman Michael S. Piwowar’s request for additional comments earlier this year may have been anticipating this regulatory hurdle, so it is possible the SEC would view those comments as supporting a delay.
Even if this was the thinking, the question would not be considered until the SEC has a sufficient number of Commissioners in place. As of today, Jay Clayton (R) is Chairman, with Kara M. Stein (D) and Mr. Piwowar (R) holding the other seats. SEC rules require three commissioners to constitute a quorum, and the thinking is that Commissioner Stein would not agree to attend a meeting where delay of the CEO pay ratio rule would be on the agenda.
Recently, Bud Crystal sadly passed away. Bud was the first superstar in the compensation consulting industry. A dynamic person, he really knew how to relate to others. After his iconic career as a consultant, Bud did a 360 & became a vocal critic of outsize pay packages. Here’s an excerpt from this Bloomberg article:
“My switch from henchman to gadfly incensed many CEOs, some of whom called me a Judas and asked where they should deliver the 30 pieces of silver,” Crystal wrote in a 1996 article for Slate.com. “In a sense, though, those CEOs and I were operating on the same wavelength. They were quoting from the Bible, while I was beginning to think seriously about the need to save my immortal soul.”
For more than four decades, Crystal made a good but quiet living advising clients such as American Express Co. and General Electric Co. But once a critic, he found himself in the middle of controversies such as the alleged excesses of the employment contract that he helped Walt Disney Co. negotiate with Hollywood superagent Michael Ovitz.
Here’s an excerpt from this blog by Morgan Lewis’ Gina Lauriero & Amy Pandit:
The following equity plan provisions should be considered:
– Companies should review their equity plans and confirm whether such plans permit share withholding in excess of the minimum applicable tax rate.
– Shareholder approval is not generally required to amend an equity plan to permit share withholding in excess of the minimum applicable tax rate. However, because of certain stock exchange rules and in light of recent Institutional Shareholder Services (ISS) guidance, a company with a plan that permits withheld shares to be added back to the plan’s share reserve should consider whether to limit the number of shares that can be added back for withheld taxes.
There are several securities law issues that can affect share withholding for taxes by Section 16 of the Securities and Exchange Act of 1934 (Section 16) officers, including the following:
– In order to exempt the disposition of shares through share withholding from being a “sale” of shares under Section 16 (the short swing profit rules), a company’s compensation committee or board of directors must approve the share withholding before any shares are withheld for Section 16 officers. The resolutions authorizing share withholding should be as specific as possible.
– The company should not retain discretion to determine whether shares will be withheld, or the amount of share withholding, for Section 16 officers.
– Share withholding for Section 16 officers should not exceed the participant’s estimated tax obligations attributable to the award, in order to avoid creating a separate derivative security.
Unresolved Section 16–related litigation has been instituted with respect to open market purchases occurring within six months of share withholding transactions (even though the transactions were reported as exempt). Until this issue is resolved, Section 16 officers should carefully consider whether to engage in nonexempt purchases of company stock in the six months before or after a tax withholding share transaction.
Tune in tomorrow for the webcast — “Proxy Season Post-Mortem: The Latest Compensation Disclosures” – to hear Mark Borges of Compensia, Dave Lynn of CompensationStandards.com and Jenner & Block and Ron Mueller of Gibson Dunn analyze what was (and what was not) disclosed this proxy season.
Here’s an excerpt from a recent column by NY Times’ Gretchen Morgenson:
But calibrating how much weight a stock price should have on C.E.O. pay is tricky: A company’s stock price can be influenced by share buybacks and other financial engineering that does little to produce long-term value. Why reward a C.E.O. for that?
And sometimes a company’s stock price rises for reasons that are unrelated to its operating performance. Remember when oil prices were hitting the stratosphere a decade ago? Executives at companies like Exxon Mobil reaped enormous pay awards not just because of able leadership but also because the escalating value of the commodity propelled the prices of their stocks.
Something similar may have happened after last year’s presidential election. Call it the Trump effect on C.E.O. pay. By early November, many stocks were barely up on the year — the S.&P. 500 had eked out a mere 2 percent gain. But after the election, the overall market rallied on expectations of the incoming Trump administration’s pro-business agenda. The S.&P. 500 wound up almost 10 percent higher for 2016.
For an outsider, determining precisely how a company assesses a performance metric is difficult, of course. But the lift from the Trump effect seems to have been most pronounced among industries in which investors believed the administration’s deregulatory fervor would be greatest and thus lead to lower costs and more profits.
Also see this NY Times piece entitled “As C.E.O. Pay Packages Grow, Top Executives Have the President’s Ear”…
Say-on-pay and shareholder advisor vote recommendations have caused a dramatic increase in the use of relative total shareholder return (TSR) as a long-term incentive (LTI) plan performance metric. Relative TSR prevalence in LTI plans has nearly doubled over the past 5 years, used by approximately 50% of companies of all sizes and industries.
This is largely due to shareholder advisors, such as Institutional Shareholder Services (ISS), using TSR as the primary metric in their relative pay-for-performance quantitative evaluations. ISS is appropriately attempting to enhance its company performance assessment model by adding 6 metrics. This new approach is clearly a response to critics, but it presents a new set of challenges.
As shown in this Semler Brossy chart, the say-on-pay failure rate of 0.6% is the lowest since voting began in 2011. Only seven Russell 3000 companies have failed thus far in 2017…
I started warning folks about needing to put say-on-frequency on the ballot this year as far back as this blog in August (and several times since). As could be expected, some didn’t get the “memo” and appear to have spaced.
For example, Retail Opportunity Investment Corp filed a revised proxy statement with the SEC (the original one was filed a week earlier), along with a separate cover letter saying they were sending out the new proxy to add the vote on the frequency of say-on-pay. At least they caught their mistake in time.
Back in 2011, quite a few companies forgot to amend their initial 8-Ks that reported voting results to explain the rationale for the company’s choice of frequency. It’s a strange part of the rule – so oversight of it isn’t surprising. But if a company fails to do this amendment within 150 days, it might not be considered a ‘timely’ filer.
In 2011, Corp Fin was fairly liberal in granting waivers for that oversight. Given that experience – and the publicity related to it – I imagine the Staff is not anticipating many waiver requests this time around. And they may not be amendable to granting such waiver requests…