U.S. SEC breathes new life into 2015 executive compensation clawback rule

SEC Chair Gary Gensler testifies before a Senate hearing on the SEC on Capitol Hill in Washington, September 14, 2021. REUTERS/Evelyn Hockstein/Pool

WASHINGTON, Oct 14 (Reuters) - The U.S. Securities and Exchange Commission (SEC) on Thursday voted to revive a rule, left unfinished since 2015, that would expand the regulator's powers to clawback executives' compensation when a company had to restate its financials due to a compliance lapse.

The SEC said it would seek a further round of public feedback on the rule, which was mandated by Congress following the 2007-2009 financial crisis, with a view to finalizing the rule likely next year.

The SEC proposed a draft in 2015, but failed to finalize it. The effort to revive the rule is part of a broader push by the SEC, now controlled by Democrats, to crack down on corporate malfeasance by boosting its tools for penalizing executives.

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Gary Genlser, the agency's chair, said in a statement that reopening the comment period provides the watchdog "an opportunity to strengthen the transparency and quality of corporate financial statements, as well as the accountability of corporate executives to their investors."

If finalized, the measure would apply to public companies of all sizes and to any executive officer who performs policymaking decisions and who has received incentive compensation, including stock options, dramatically expanding the scope of the agency's existing clawback powers which were created in 2002.

The SEC could use the new power to recover compensation in excess of what the executive concerned should have received in the event a company has to restate its financials due to "material noncompliance" with securities laws.

It would apply to compensation paid in the three years leading up to the restatement - "regardless of whether the misstatement was due to fraud, errors, or any other factor."

It would also direct U.S. stock exchanges to establish listing standards that would require each issuer to develop and implement such a policy.

The SEC's five commissioners unanimously voted to reopen the comment period on Thursday, and proposed a more stringent interpretation of the rule than the previous 2015 proposal, including by reconsidering the scope of "accounting restatement" and "reasonably should have concluded" standard for triggering a look-back.

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Reporting by Katanga Johnson Editing by Paul Simao

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Thomson Reuters

Washington-based reporter covering U.S. regulation at the Securities and Exchange Commission and the Consumer Financial Protection Bureau, previously in Ecuador, alumnus of Morehouse College and Northwestern University’s Medill School of Journalism.