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Bonus Compensation Clawbacks

By Marc Fagel, Monica Loseman and Scott Campbell

In an emerging trend, chief executive officers and chief financial officers of companies settling U.S. Securities and Exchange Commission (SEC) financial reporting cases are personally paying back bonuses and other incentive-based compensation, despite the absence of accusations of personal misconduct or formal SEC actions against them individually.

Already in 2016, several top executives have returned compensation ' from tens of thousands to millions of dollars ' after their companies allegedly engaged in accounting improprieties. These payments reflect increasing acceptance of a new reality where the SEC expects chief executives and chief financial officers to be financially accountable for any misconduct ' fraudulent or not ' resulting in a restatement, even where they are not directly involved. And if those executives do not voluntarily return all incentive-based compensation received in the year following a restated period, they will likely face an SEC enforcement action. Moreover, the SEC is not content to limit reimbursement to top executives. Under a recently proposed rule, numerous other officers will soon be in the clawback crosshairs.

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