The Advisors' Blog

This blog features wisdom from respected compensation consultants and lawyers

January 21, 2015

Study: CEO Pay Cuts Lead to Earnings Manipulation

Broc Romanek, CompensationStandards.com

This article from “Accounting Today” illustrates the need for the compensation risk assessment required by the SEC since December 2009:

Slashing a CEO’s compensation after a company produces disappointing financial results may help improve earnings for a time, but it can also encourage earnings manipulation, according to a new study. The study, which was presented at last month’s annual meeting of the American Accounting Association, acknowledged that some prior academic research has found company performance to improve when boards of directors cut CEO remuneration, but found the improvement could stem from financial and managerial manipulations as opposed to solid gains. “In the year following a pay cut, CEOs are more likely to engage in earnings management because it will lead to a faster improvement in the reported performance and a speedier restoration of CEO pay to earlier levels,” said the study, co-authored by accounting professors Gerald J. Lobo of the University of Houston, Hariom Manchiraju of the Indian School of Business in Hyderabad and Sri S. Sridharan of Northwestern University.

For the most part, the tactic works, the researchers found, noting that “the board does not punish manipulative activities sufficiently,” despite the fact that CEO earnings management “impos[es] significant agency costs on the firm in terms of both lower market returns and diminished operating performance…in the longer term.” Researchers attributed the board failure to the CEO’s dominant influence on the pay-setting process. “The CEO accepts a cut in the wake of poor performance to placate stakeholders and subsequently, when the firm’s performance improves (though via earnings management), the CEO’s pay is restored to earlier levels, thereby avoiding negative publicity and scrutiny,” said the study.

The CEO’s pay is frequently restored the following year to nearly the same level as it was prior to the cut. The median pay cut in the study was 42.2 percent, while the median compensation rise the following year was 40 percent. “Certainly the issue of CEO pay cuts is a tricky one for investors,” Lobo said in a statement. “On the one hand, they welcome slashing CEO pay in response to inferior company performance and hope this will light a fire under the CEO. On the other hand, they need to be on the alert for the kind of manipulation our study uncovers.”

A good rule of thumb recommended by the researchers is to be particularly wary of CEO pay cuts at companies where institutional investment is low, especially where there are CEO-friendly governance mechanisms such as poison pills, golden parachutes, and rules that diminish board power over the CEO. “We find that a high level of institutional investment tends to constrain earnings management following pay cuts, while a high degree of CEO entrenchment tends to foster it,” said Lobo.

To produce the study, the researchers drew on a database of executive compensation and examined an 18-year period up through 2011. They analyzed data on 1,330 single-year cuts of 25 percent or more in CEO pay (including salary, bonuses, long-term incentive plans, and stock and option awards) and compared the performance of companies where there were CEO pay cuts with companies constituting the study’s control group. In analyzing the corporate financial reports, the researchers focused on two types of earnings manipulation. The first category consisted of what “discretionary accruals”—that is, non-cash accounting items that typically entail some element of guesswork, such as predictions of future write-offs for bad debts or estimates of inventory valuations. Companies that cut CEO pay reported discretionary accruals that were 2.33 times greater than those of companies in the control group, a level suggestive of earnings manipulation.

The second category consisted of company operations designed to produce a short-term boost in corporate income. The authors specifically looked for three factors: 1) acceleration of sales through price discounts, 2) overproduction of goods to lower the manufacturing cost per unit, and 3) reduction of outlays for research and development, advertising and other discretionary expenses.

Companies that slashed CEO compensation experienced an increase in reported financial performance the following year, both in terms of stock gains and bottom-line returns on assets.

Median share prices rose at a market-adjusted rate of 1.1 percent, a marked improvement over negative returns totaling about 18 percent in the two previous years. Meanwhile, the return on assets rose to about 5.7 percent, which represented about a 50 percent increase over the average for the previous two years and matched the profit margin of companies in the control group.

Yet when the researchers took into account abnormal accruals and real-activities manipulation, the profit picture changed markedly. Without these earnings boosts, the median return on assets fell to 0.3 percent among the companies that slashed CEO pay, compared to approximately 5.3 percent among those that did not. The fact that the profit ratio shrunk nearly 100 percent in the first group, and only 10 percent in the second group, suggested the considerable amount of earnings manipulation occurring in the companies where there were CEO pay cuts. Professor Manchiraju estimated that over one-third of the companies where there were CEO pay cuts would have needed to report their bottom-line losses, were it not for the lifts they received from earnings manipulation.

In terms of whether the stock market is aware of what is happening, the study found that investors do seem to respond negatively to the high level of accruals in the pay-cut companies, but not to their operational manipulations. In any event, investors who shun these companies proved wise in doing so, as the earnings management occasioned by the CEO’s pay cut led on average to a decline in the industry-adjusted return on assets beyond the first year after the pay cut.

January 20, 2015

Democratic Proposal Would Link Corporate Tax Deductions for Executive Pay to Worker Pay Increases

Broc Romanek, CompensationStandards.com

Here’s news from Steve Seelig and Puneet Arora of Towers Watson:

As part of their alternative to the Republican agenda, House Democrats have dusted off last year’s proposal to limit the deductibility of executive pay to $1 million for companies that fail to increase their rank-and-file pay to keep pace with U.S. economic growth. (Here’s the version of the bill introduced in the last Congress by Rep. Chris Van Hollen (D-Md.). This bill is part of larger democratic “action plan” focusing on the middle class that also would provide tax breaks to workers earning under $100,000 per year.

The House previously voted down Van Hollen’s procedural motion to consider the bill, but he’s expected to reintroduce the bill later this year. The Democrats appear determined to keep the CEO-versus-worker-pay issue in the news pending the Securities and Exchange Commission (SEC) release of final CEO pay ratio regulations, as evidenced in the “dear colleague” letter released by House Minority Leader Nancy Pelosi (D-Calif.) on the opening day of the new session. (For more on the SEC rulemaking outlook, see “Updated SEC Calendar Pushes Dodd-Frank Pay Rules Back to 2015,” Executive Pay Matters, November 26, 2014.)

The Van Hollen bill would take a different approach than the California bill we blogged about last year, which would have limited state tax deductions for executive compensation on a sliding scale depending on the ratio of executive pay to rank-and-file pay. (For more on the California proposal that was defeated in the state legislature, see “California Legislation Would Limit Tax Deductions for Companies Where the CEO Pay Ratio Is Too High,” Executive Pay Matters, May 1, 2014.) Instead, it would add a new section to existing Section 162(m) of the tax code to limit to $1 million the deductibility of compensation (including performance-based compensation) paid to any current or former employee, officer or director if the average pay of all of the company’s U.S.-based non-highly-compensated employees (as defined under the qualified plan rules, i.e., those below $115,000 for 2015) does not keep pace with the growth of the U.S. economy. U.S. economic growth would be based on the average of productivity growth (based on Bureau of Labor Statistic measures) plus adjustments in the cost of living under the tax code.

The bill would also expand the reach of Section 162(m) to cover certain nonlisted, publicly traded companies, make sure the CFO is re-included as a “covered employee” and make it clear that income paid to beneficiaries is included in an executive’s remuneration for 162(m) purposes. Given the GOP’s wider majority in the House and control of the Senate in the new Congress, any democratic proposals are even more of a long shot than before. But, we’ll keep you up to date if there’s any movement.

January 15, 2015

Proxy Disclosures: Executive Pension Values Will Spike Due to Assumption Changes

Broc Romanek, CompensationStandards.com

Here’s a blog from Towers Watson’s Steve Seelig and Dave Suchsland (which summarizes this longer memo):

Summary Compensation Table (SCT) disclosures of changes in pension values are set to see the largest increase in recent memory in 2015 proxies, thanks to a confluence of two events that took place in 2014:

– In October, the Society of Actuaries (SOA) released updated mortality tables to be applied when retirement plan sponsors estimate the financial obligations associated with their plans. The new tables reflect that life expectancies have improved more than predicted under the existing tables, issued in 2000. This means many companies will use updated mortality assumptions for this fiscal year in accounting for their retirement obligations that, in turn, will apply to proxy values.
– Second, interest or discount rates for 2014 decreased markedly from 2013, which means pension liabilities increase because the plan will earn less interest on investments in the future.

These changes will directly increase the change in pension value reported in the SCT, even in situations where an executive may have a frozen pension benefit. For those executives still accruing additional benefits, the impact may be even more profound. This is because the SCT change-in-pension-value calculation is tied to the assumptions used to compile a company’s overall financial statement liability.

January 14, 2015

Webcast: “The Latest Developments: Your Upcoming Proxy Disclosures”

Broc Romanek, CompensationStandards.com

Tune in tomorrow for the webcast – “The Latest Developments: Your Upcoming Proxy Disclosures” – to hear Mark Borges of Compensia, Alan Dye of Hogan Lovells and Section16.net, Dave Lynn of CompensationStandards.com and Morrison & Foerster and Ron Mueller of Gibson Dunn discuss all the latest guidance about how to overhaul your upcoming disclosures in response to say-on-pay-including the latest SEC positions-and the other compensation components of Dodd-Frank, as well as how to handle the most difficult ongoing issues that many of us face.

January 13, 2015

Samples: 10 Good CD&As

Broc Romanek, CompensationStandards.com

One of the most common questions that we receive is “have you seen any good CD&As?” Of course, Mark Borges blogs about countless CD&As all the time, providing in-depth analysis. But I have posted a list of 10 good ones that Mark has put together in our “CD&A” Practice Area so you don’t have to dig around. Bear in mind that we don’t know all the facts – so we never “endorse” disclosure, nor does this list mean that there might not be other CD&As that are superior to those on our list…

Tune in on Thursday for the webcast – “The Latest Developments: Your Upcoming Proxy Disclosures” – to hear Mark Borges of Compensia, Alan Dye of Hogan Lovells and Section16.net, Dave Lynn of CompensationStandards.com and Morrison & Foerster and Ron Mueller of Gibson Dunn discuss all the latest guidance about how to overhaul your upcoming disclosures in response to say-on-pay-including the latest SEC positions-and the other compensation components of Dodd-Frank, as well as how to handle the most difficult ongoing issues that many of us face.

January 12, 2015

Compensation Standards Newsletter: Winter 2015 Issue

Broc Romanek, CompensationStandards.com

In this Winter 2015 issue of our Compensation Standards Newsletter, there are 22 pieces of news & analysis from the last month culled from the three blogs on this site. You can sign up to get any blog pushed out to you via email whenever there is a new entry by simply inputting your email address on the left side of that blog.

January 9, 2015

Company Rescinds CEO’s Option After Lawsuit Filed

Broc Romanek, CompensationStandards.com

I thought this Chicago Tribune article entitled “AMD rescinds CEO options awards after shareholder lawsuit” was a good teaser for our upcoming webcast on January 28th during which Pillsbury’s Sarah Good, Shearman & Sterling’s Doreen Lillenfeld and Winston & Strawn’s Mike Melbinger will drill down on how proxy disclosure-related lawsuits are faring and what you can do to avoid them. Also tune in for our webcast next Thursday on “The Latest Developments: Your Upcoming Proxy Disclosures“…

January 8, 2015

Study: Alignment Gap Between Say-on-Pay Voting & Creating Value

Broc Romanek, CompensationStandards.com

Here’s a new study authored by Organizational Capital Partners (and commissioned by the Investor Responsibility Research Center Institute (IRRCi)) that finds:

– Average Say-on-Pay support vote across the sample was 82% for 32 low performing companies (return on invested capital – or ROIC – less than the cost of capital and negative relative total shareholder return) and 84% for 32 high performing companies (ROIC greater than the cost of capital and positive relative total shareholder return).

– Median vote was 90% for the low performing companies and 96% for high performing companies.

– There was not a meaningful difference between the recommendations of the two major proxy advisor firms, ISS and Glass Lewis. ISS recommended for 84% Say on Pay approval at value destroying companies and for 81% of value creating companies. Glass Lewis recommended for votes at 72% of the value destroying companies and 81% of the value creating companies.

January 7, 2015

Pay Ratio: Is the SEC Adopting Final Rules Next Week?!?

Broc Romanek, CompensationStandards.com

Does Politico suddenly have the inside track at the SEC? That would be a shocker. This excerpt from this article surprised me:

…the SEC’s commissioners are expected to vote on Dodd-Frank rules as soon as mid-January, sources said, with the most likely candidates being regulations concerning derivatives markets and the law’s controversial “pay ratio” requirement for executive compensation.

The article also handicaps the odds of crowdfunding and other Dodd-Frank rules. Personally, I would fall off my chair if the SEC adopted pay ratio rules next week – but we’ll find out soon enough whether Politico’s “sources” are real. Note that this article from the Washington Examiner notes that a source at the SEC said that finalizing the pay ratio rule was a “top priority” and that “while there is no timetable to finish the rule…it could be done soon.”

As an aside, here’s an article critical of some members of Congress that have asked the SEC to change its budget priorities…

January 6, 2015

The Role of Directors for CD&As

Broc Romanek, CompensationStandards.com

In this podcast, Rich Fields of Tapestry Networks provides some insight into the role of directors in CD&As, including:

– What do directors see as the purpose of the CD&A?
– How involved are they in creating and finalizing the CD&A?
– Are there any particularly challenging CD&A drafting decisions directors are thinking about?
– Any practical tips for CD&A drafting season?