Clawback

"Should executives get to keep lavish pay packages when the profits that generated their compensation go up in smoke?" A growing, grumbling chorus says "yes":

With losses mounting at the nation’s largest financial institutions, years of earnings have been erased, investors have lost billions, thousands of employees have been let go, and taxpayers have been tapped to rescue the financial system. But executives who helped set the problems in motion, or ignored them as they mounted, are still doing fine. Humbled, perhaps, but well paid for their anguish.

Executives at seven major financial institutions that have collapsed, were sold at distressed prices or are in deep to the taxpayer received $464 million in performance pay since 2005 . . . Almost half of that consisted of cash compensation.

Yet these firms have reported losses of $107 billion since 2007, a result of their own missteps and the ensuing economic downturn. And $740 billion in stock market value has been lost since these companies’ shares peaked in 2007, just before the housing bubble burst.

Against that landscape, a growing chorus is demanding that executive compensation snared shortly before problems emerged be given back.

“There is a line that separates fair compensation from stealing from shareholders,” said Frederick E. Rowe, a money manager in Dallas and a founder of Investors for Director Accountability, a nonprofit group. “When managements ignore that line or can’t see it, then hell, yes, they should be required to give the money back.”

Corporate boards that awarded lush executive pay packages almost always justified them by saying they encouraged superior performance and were directly tied to benchmarks like profitability.

But now, with a public backlash against excessive pay and taxpayer lifelines extended to crippled companies, the idea of recouping compensation, known as “clawback,” is gaining traction.

Currently there is no legal mechanism for forcing the regurgitation of past pay, so such efforts would need to be bolstered by new legislation. Clawbacks also promise to be a hot-button issue at shareholder meetings in coming months.

Executive Compensation and the power of $1

The new trend in executive compensation seems to be $1. AIG and the auto CEOs have all agreed to salary cuts to just $1. Of course, the compensation will not really amount to $1, as there is also equity compensation. This $1 compensation news is followed by a new Corporate Library report finding CEO compensation being up 7.5% for 2007. Should we expect any difference for 2008? Not likely. Even John Thain of Merrill Lynch only folded in his request for a $10 million bonus under outside pressure. Apparently, Thain had not been independently dissuaded from his request by the billions in losses Merrill sufferred in 2008.

But now AIG is under new complaints for "retention payments" made to key personnel. AIG has announced payments ranging from $92,500 to $4million to 168 AIG employees. While AIG has agreed to no 2008 bonus payments and no salary increases for 2009 for the top seven officers and no salary increases for the next fifty highest paid execs. Apparently, thirteen of those getting "retention" payments are executive officers of AIG who have agreed to defer payment to them until April 2009, but not to waive this additional compensation. Not surprisingly, some in Congress have complained.

The long-standing problem with executive compensation is that there are so many ways to pay corporate executives. That is, $1 is not really just $1. Compensation comes in so many other ways, from retention payments, bonuses, and perks like corporate jets. My biggest concern with paying these executives just $1 in salary is that their desire for some salary will now correspond to their ability to trigger equity payments. Short terms equity gains for these companies may not be the same thing as long term stability and growth. It would be much better to pay the executives a reasonable salary and forgo the equity. That raises the separate issue of loyalty to company prospects that might arise if executives don't have enough incentives to do their jobs well. Never mind the idea of doing a good job in order to keep one's job. There has been little mention on Capital Hill of the equity compensation that companies getting substantial federal bailouts have promised to senior management. While the stock of these companies may be worth little now, that might not always be the case. A little more talk about continuation of equity programs for these companies should be next.

— JSM