On August 5, 2015, the Securities and Exchange Commission approved its final rule subjecting most public companies to the so-called “Pay Ratio Disclosure” mandated by the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. The SEC voted 3-2 to approve the measure, with the panel’s two Republican members opposing it. In the split vote, the SEC finally put into place one of the most controversial rules mandated by Dodd-Frank. In the years since the SEC began working on the rule, it has attracted an intense measure of both public scrutiny and advocacy, drawing more than 286,000 public comments.
Say On Pay
Investors Get a Voice at the Regulator: SEC Names Its First Head of the Office of the Investor Advocate
Though investors might have assumed that the entire Securities and Exchange Commission was their advocate to begin with, on February 12th the agency announced that it had hired Rick Fleming to be its very first Investor Advocate in the recently created Office of the Investor Advocate (“OIA”).
In hiring Fleming, the SEC is implementing Title IX of the Dodd-Frank Wall Street Reform and Consumer Protection Act, which amended the Securities Exchange Act of 1934 by creating, among other things, an Investor Advisory Committee, the OIA, and an ombudsman to be appointed by the Investor Advocate. Fleming comes to the SEC from his most recent job as Deputy General Counsel at the North American Securities Administrators Association where he advocated for state securities regulators in matters before Congress and the SEC. Fleming previously spent several years in Kansas state government, including some fifteen years in the state’s Office of the Securities Commissioner. READ MORE
A Tale of Two Paychecks; Ralph Lauren Makes 1,900 Times More than You and the SEC Thinks You Should Know
On September 18, 2013, the SEC voted to propose a new rule that would require public companies to disclose the ratio of compensation of its CEO to the median compensation of its employees.
The new rule, required under the Dodd-Frank Act, gives companies flexibility to determine the median annual total compensation of its employees in any way that best suits their particular circumstances when calculating the ratio. SEC Chair, Mary Jo White stated that the SEC is very interested in receiving comments to the proposed approach and the flexibility it provides.
SEC Commissioner Michael S. Piwowar, in a strongly worded statement, expressed his dissatisfaction with the proposed rule. Quoting from Charles Dickens’ A Tale of Two Cities – “it was the best of times, it was the worst of times” – Piwowar declared that the pay ratio disclosure proposal “represents what is worst about our current rulemaking agenda.” Piwowar’s concerns were twofold. First, that the pay ratio disclosure could harm investors. Piwowar expressed his concern that investors using pay ratios to compare companies risked being distracted from material investment information and mislead by the conclusions offered by the ratios. Additionally, he noted that investors may also be harmed if pressure to maintain a low pay ratio curtails expansion of business operations into regions with lower labor costs. Second, he was troubled by his observation that the pay ratio rule could have a negative effect on compensation, efficiency, and capital formation because the competitive impacts of the disclosure would disproportionally fall on U.S. companies with large workforces and global operations and could influence how companies structure their business, leading to inefficiencies, higher cost of capital and fewer jobs. READ MORE
New Wave Of Lawsuits Targeting Disclosures On “Say-On-Pay;” Plaintiffs Use M&A Litigation Tactics To Attack Executive Pay
The plaintiffs’ bar has taken new aim at public companies’ annual meetings: filing lawsuits to enjoin annual shareholder approval of stock plan proposals and “Say-On-Pay” (“SOP”) votes, typically arguing that the proxy disclosures regarding these topics are inadequate. Dozens of cases have been filed this year to date. The Santa Clara Superior Court recently denied plaintiff’s attempt to delay Symantec’s SOP vote, finding no precedent for such an injunction. Yet new cases continue to come.
In Symantec, plaintiffs argued that proxy disclosures failed to provide enough information to allow shareholders to make an informed decision regarding executive compensation proposals. Plaintiffs argued that shareholders needed more detailed information, including an analysis conducted by the company’s compensation consultants and any compensation risk assessment undertaken by the company. Symantec v. Gordon, et al., Case No. 1-12-CV-231541 (Cal. Santa Clara County Superior Court). The Symantec Court disagreed.
The Symantec case suggests that judges will look to industry practices in evaluating the adequacy of disclosures on executive compensation. The court considered an expert opinion from a Stanford Professor (Robert Daines) surveying disclosures made by other companies in the industry. Professor Daines concluded that Symantec’s disclosures were at least as detailed as the industry standard. Lacking any factual support or legal precedent for such an injunction, the court denied the motion. READ MORE
The Attack on Executive Compensation: New Approach Unlikely to Avoid the Business Judgment Rule
On August 17, 2012, a shareholder filed a derivative suit in Delaware federal court against Viacom Inc.’s board of directors, alleging they wasted corporate assets by awarding lavish corporate bonuses. In a novel approach that hardly mentions the “say-on-pay” provisions of Dodd-Frank, the plaintiff argued that the company violated §162(m) of the Internal Revenue Code. Section 162(m) limits corporate tax deductions that can be taken by a company for any senior executive compensation over $1 million to that which is determined by objective, performance-based criteria such that a “third party having knowledge of the relevant facts could determine whether the goal is met.” 26 CFR § 1.162-27(e)(2)(ii).
The complaint alleges that Viacom’s tax deductions for the compensation in excess of $1 million paid to executive chairman Sumner Redstone and two other senior executives were based on subjective criteria like “leadership and vision” and therefore violated Section 162(m). The complaint seeks to force repayment to Viacom of $36 million in past compensation. The complaint also seeks broader voting rights on executive compensation issues. Specifically, the plaintiff wants Class B shareholders to have voting rights on executive compensation (currently, only Class A shareholders have them).
The complaint further alleges that Viacom’s Compensation Committee awarded these annual bonuses to its senior executives in a manner that violated its own shareholder-approved 2007 compensation plan, which required the Committee meet the requirements of §162(m). READ MORE