The D & O Diary : Directors and Officers Liability and Insurance : The D & O Diary : Kevin LaCroix : Securities Laws, Corporate Fraud, D & O Litigation

The first wave of “say on pay” litigation involved lawsuits brought by shareholders following a negative advisory say on pay vote under the Dodd-Frank Act. The second wave of say on pay litigation, which picked up in 2012, involved plaintiffs’ efforts to enjoin upcoming shareholder votes on compensation or employee share plans on the grounds of inadequate or insufficient proxy disclosure.

 

Now there is a “third wave” of executive compensation litigation, according to a February 21, 2013 memo from the Pillsbury Winthrop Shaw Pittman law firm entitled “Proxy Season Brings a Third Wave of ‘Gotcha’ Shareholder Litigation” (here). In these third wave lawsuits, the plaintiffs allege that companies issued stock options or restricted stock units to executives in amounts that exceed the limits of the companies’ stock plans. According to the law firm memo, this latest litigation wave “has not crested yet.”

 

As the memo details, the first two waves of say on pay litigation has not been particularly successful for the plaintiffs. Indeed, the memo includes detailed appendices laying out how the cases have fared in the courts. Among other things, the statistics in the memo show that in most cases the companies targeted in the second wave cases successfully fought the plaintiffs’ efforts to obtain preliminary injunctions; according to the memo, “the plaintiffs’ bar was beaten in 80% of the motions for preliminary injunction.”

 

Faced with these setbacks, the plaintiffs bar “has turned to a new area of focus” and “is demonstrating its resourcefulness by brining a third wave of shareholder litigation.” The third wave, like the first two waves, concerns executive compensation.  However, the third wave lawsuits do not relate to the say on pay votes.

 

According to the memo, in the past two quarters, ten companies have been targeted by derivative shareholder litigation “alleging that those companies awarded executive compensation in violation of stock plans and thus filed purportedly false and misleading proxy statements.” While noting that it is far too early to tell how these cases ultimately will fare, or whether these derivative suits  will even survive motions to dismiss base on the insufficiency of the demand futility allegations,  the memo does note that “if the allegations are true, these suits stand a higher probability of success than the two prior litigation waves.” However, it is “too soon to tell if plaintiffs’ allegations based on reading the relevant plans and examining the awarded executive compensations are correct or based on erroneous analysis.”

 

The memo further notes that these third wave cases are “entirely preventable.” If the allegations are true that companies issued stock options to executives in excess of limits authorized by the relevant plans, then “those actions could have been prevented by complying with all limits established by the plans.” The memo suggests that “careful review of executive compensation plans by in-house and outside counsel and compensation consultants should ensure compliance with all governing plans.”

 

While I am sure readers of this blog will find the law firm memo interesting, I suspect readers will find the memo’s detailed appendices, laying out the filings tallies and disposition patterns of the three litigation wave, to be particularly helpful and interesting.

 

Special thanks to Sarah Good of the Pillsbury law firm for sending me a copy of the memo.

 

Worth Reading: One of the blogs that we follow is The D&O Discourse written by Douglas Greene of the Lane Powell law firm. Yesterday, Doug had a post that I thought would be of interest to readers of this blog, so I am linking to it here. In the post, Doug describes important securities and corporate governance cases that he will be watching in 2013, particularly the Allergan derivative case pending in the Delaware Supreme Court and the Amgen case pending in the U.S. Supreme Court. The post does a nice job laying out why he is watching these cases and why they may be important. He also has an interesting analysis of some unanticipated and arguably unintended consequences from the Supreme Court’s 2011 decision in the Matrixx Initiatives case.

 

And Finally: How did a Roman era brick with a cat's paw print wind up at the Fort Vancouver historical site in Washington State? Good question, answered in a February 21, 2013 article in The Atlantic Monthly entitled "1 Kitty, 2 Empires: 2,000 Years in World History Told Through a Brick" (here).

 

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I am pleased to publish below a guest post from Bruce Vanyo, Richard Zelichov and Christina Costley of the Katten Muchin Rosenman law firm These three attorneys’ post addresses a new approach that plaintiffs’ lawyers are taking to “say on pay” challenges – that is, a preemptive attack in the form of a lawsuit seeking to enjoin the vote based on alleged misrepresentations in the proxy statement

 

I would like to thank Bruce, Richard and Christina for their willingness to publish their article on this site. I welcome guest posts from responsible commentators on topics of interest to readers of this blog. Any readers who are interested in publishing a guest post on this site are encourage to contact me directly. Here is their guest post:

 

Nobody can accuse the plaintiff’s shareholder bar for suffering from a lack of creativity or being easily dissuaded from purporting to represent shareholders. Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank Act”) in July 2010. Section 951 of Dodd-Frank requires a stockholder advisory vote on executive compensation (a “say-on-pay” vote). The Dodd-Frank Act, however, “specifically provides” that the say-on-pay vote (1) “shall not be binding on the issuer or the board of directors;” and (2) does not “create or imply any change to the fiduciary duties of the board members.” 15 U.S.C. § 78n-1(c)). Nonetheless, the plaintiff’s bar began filing stockholder derivative lawsuits alleging breach of fiduciary duty after any negative say-on-pay vote. The vast majority of these cases have been dismissed because the plaintiff failed to make demand on the company’s board of directors before bringing suit and such See Gordon v. Goodyear, 2012 WL 2885695, *10 (N.D. Ill. July 13, 2012) (collecting cases); see also Swanson v. Weil, 2012 WL 4442795 (D. Colo. Sept. 26, 2012); Haberland v. Bulkeley, No. 5:11-CV-463-D (E.D.N.C. Sept. 26, 2012).

 

As a result, the plaintiff’s bar has resorted to a new attack based on a tactic developed from the merger cases: suing companies before the say-on-pay vote to enjoin the vote based on alleged misleading disclosures. In the last month or so, Plaintiffs’ shareholder lawyers have issued over 30 notices of investigation concerning such suits, and over the course of the last year, they have sued over 20 companies. The complaints assert two theories (either alone or in combination). They assert that the proxy statement fails to disclose material facts necessary for the shareholders to cast an informed vote on executive compensation and/or they assert that the proxy fails to disclose material facts necessary for the shareholders to determine whether to increase the number of shares available to be granted to executives and employees as incentive compensation under company plans providing for such grants. The two theories are slightly different because the shareholder vote on executive compensation is purely advisory and exists solely because of the Dodd-Frank Act while the vote on increasing the number of shares available under a stock plan is required either by state law or the company’s articles of incorporation, bylaws or listing standards of the exchange on which the company trades.

 

While the trend has picked up recently, the first such case was filed on January 13, 2012 against AmDocs Ltd. in New York County Supreme Court. Plaintiff sought injunctive relief based on a proposal to increase the number of shares available under an equity incentive plan. Plaintiff did not challenge the proposal, but rather, the adequacy of the disclosures in the proxy statement regarding the proposal. The alleged omissions – the equity value of the shares; the timing of the issuance; the “dilutive impact” that the shares might have; the reason for issuing more shares when the existing incentive plan still had shares available; and the reason “why” the company was granting to shares to executives at an increasing rate, though management had not improved the Company’s performance – were not material, and basically amounted to asking “why” in connection with a shareholder vote plaintiff opposed. Defendants (represented by Katten Muchin Rosenman LLP) removed to the Southern District of New York, moved to dismiss, and opposed plaintiff’s request for a preliminary injunction. Plaintiff then voluntarily dismissed the claim.

 

Despite their initial loss in the case against AmDocs, plaintiffs have surprisingly had success in some of these cases. Specifically, in a case concerning Brocade Communications Systems, Inc., a plaintiff sought injunctive relief based on alleged omissions regarding a proposal to increase the number of shares in an equity options plan. Plaintiff argued the proxy: (1) omitted internal projections regarding future stock grants/share repurchases and their dilutive impact; (2) misled shareholders by claiming a repurchase plan would reduce potential dilution; and (3) failed to include a “fair summary” of the board’s analysis, including its equity utilization compared to peer companies. On April 10, 2012, the court enjoined the annual vote and required Brocade to disclose its internal projections regarding future stock grants. Similarly, WebMd, H&R Block and NeoStem settled cases filed against them by agreeing to additional disclosures requested by the plaintiff.

 

Plaintiff’s streak of success, however, recently came to halt in another case defended by Katten Muchin Rosenman LLP. On October 2, 2012, a plaintiff filed a complaint in DuPage County, Illinois seeking to enjoin a say on pay vote alleging, among other things, that the proxy statement omitted material information regarding peer companies and fees paid to compensation consultant. The case was removed to the Northern District of Illinois and the plaintiff set the hearing on the TRO nearly immediately. With just four business days in which to oppose, we filed a comprehensive brief opposing Plaintiff’s motion, and distinguishing the other cases in which the plaintiff had had success. At a hearing on October 9, 2012, the District Court denied Plaintiff’s Motion for a temporary restraining order.

 

In short, the plaintiffs’ shareholders bar continues to explore options to take advantage of the Dodd-Frank Act’s say on pay provisions. They have had some success and companies must be vigilant to defend their practices as compliant with all applicable law and not subject to injunction.

 

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In the latest example of the SEC’s use of its compensation clawback authority under Section 304 of the Sarbanes-Oxley Act, the SEC reached a settlement with the former CFO of Beazer Homes to return more than $1.4 million in bonus compensation he earned during a period when the company was committing accounting fraud. As is contemplated under Section 304, the former CFO, James O’Leary, was obligated to return the bonus compensation even though he was himself not charged with any wrongdoing in connection with the accounting fraud. The SEC’s August 30, 2011 press release about the settlement can be found here.

 

The SEC has previously accused Beazer Homes and its former chief accounting officer, Michael Rand of accounting fraud. In September 2008, Beazer settled its SEC enforcement action. The SEC action against Rand is continuing. Last year, as reported here, Rand was separately indicted on charges including securities fraud and witness tampering. The SEC alleges that during various fiscal years including 2006  Rand and other employees misreported the company’s income by releasing redundant reserves to avoid missing analysts’ estimates.

 

O’Leary served as CFO from 2003 to 2007. However, in the SEC complaint against him, he was not charged with any involvement with or even any awareness of the accounting improprieties. Under Section 304, if any reporting company fails to comply with the financial reporting requirements of the federal securities laws, then the company’s CEO and CFO can be compelled to return bonus compensation or stock sale profits earned during the twelve months following the financial misreporting. Section 304 does not require that the CEO or CFO be personally charged with the misconduct or to have otherwise violated the securities laws.

 

Under the terms of his settlement with the SEC, which is subject to court approval, O’Leary agreed to reimburse Beazer more than $1.4 million in case, including his fiscal 2006 bonus of $1.02 million, plus $131,733 in stock compensation. He also agreed to reimburse the company $274,525 in stock sale profits.

 

O’Leary’s settlement follow the SEC’s similar March 2011 settlement with  Beazer’s CEO Ian McCarthy, who returned several millions of dollars in bonus compensation and stock compensation he had received.

 

These SOX Section 304 clawback actions against Beazer Homes CEO and CFO follow prior Section 304 clawback actions in which the SEC has sought reimbursement of compensation paid to corporate officials they had earned during periods in which their companies had made financial misstatements, as I discussed in an earlier post. As was the case in the actions against Beazer’s CFO and CEO, in the prior actions the officials involved were not alleged to have been involved in or aware of the financial misreporting. At least one court (refer here) has affirmed the SEC’s authority to pursue the compensation clawback under these circumstances, under SOX Section 304.

 

Though statutorily authorized, the implementation of a forfeiture without culpability or fault raises troubling questions, including even basic questions of fairness. On the other hand, it might also fairly be asked whether the CEO or CFO ought to be able to retain benefits accumulated at a time when the investing public was being misled, by financial statements that the CEO and CFO certified, about the company’s financial condition. As an SEC official was quoted as saying in the press release about the SEC’s settlement with O’Leary, “Section 304 of the Sarbanes-Oxley Act encourages senior management to take affirmative steps to prevent fraudulent accounting schemes from occurring on their watch.”

 

Regardless of where you come down on the propriety of the compensation clawback without culpability of any kind, the question is about to extend a much broader array of corporate officials. As discussed here and here, under Section 954 of the Dodd-Frank Act, the national securities exchanges are required to promulgate rules requiring reporting companies to adopt and disclose procedures providing for the recovery of any amount of incentive based compensation paid to any current or former executive that exceeds the amount which would have been paid under an accounting restatement in the three years prior to the date on which the company was required to prepare the restatement. The Dodd-Frank provision is quite a bit broader than Sox Section 304, as it extends to all executives and it reaches back three years and to all incentive based compensation.

 

As I have previously noted (here), these provisions allowing for the return of compensation without fault or culpability raise a host of potentially troublesome insurance coverage issues. The marketplace has responded, as many carriers are now willing in at least some cases to add a provision to their policy stating that the policy will cover defense expenses incurred in connection with a SOX 304 action.

 

With the advent of the Dodd-Frank Section 954 requirements, it may be worth asking whether the relatively new Section 304 policy provisions need to be further extended to clarify that the policies will also provide coverage for defense expenses incurred in a Section 954 action or any other compensation clawback provision.

 

Beazer Homes financial misreporting has led to a slew of litigation. As discussed here, Beazer previously settled for $30.5 million the subprime-related securities class action lawsuit that had been filed against the company and certain of its directors and officers. And as discussed here, the company also settled the separate subprime-related shareholders’ derivative suit that had been filed against the company, as nominal defendant, and certain company officials.

 

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One of the many changes introduced by the Dodd-Frank Act was the requirement for a shareholder vote to approve executive compensation. Under the Act’s provisions, the vote is not binding on the company or its board, but is purely advisory. Nevertheless, companies whose shareholders vote against their “Say on Pay” resolutions are finding that lawsuits are following in the wake of the vote, according to Broc Romanek’s April 26, 2011 post on the TheCorporateCounel.net blog (here). 

 

Section 951 of the Dodd Frank Act provides that not less frequently than every three years public companies must provide their shareholders with an opportunity for an advisory vote on the compensation of the most-highly compensated employees. On January 25, 2011, the SEC adopted rules (here) implementing the requirements of Section 951. All public companies must hold Say-on-Pay votes at shareholder meetings starting on January 21, 2011. The rules are delayed for two years for companies with public float of less than $75 million. A March 2011 Investor Bulletin describing the Say on Pay requirements can be found here.

 

In view of public sentiment regarding executive compensation, it may not be a surprise that at some public companies the shareholders have voted against the Say on Pay resolution. According to Romanek’s April 25, 2011 post on the TheCorporateCounsel.net blog (here), a total of eight companies so far during this proxy season have seen their shareholders vote against the Say on Pay resolution. The most recent companies to have shareholders vote against their say on pay resolutions are Black and Decker (refer here) and Umpqua Holdings (refer here).

 

Umpqua Holdings filing on Form 8-K describing the shareholder vote on the say on pay resolution includes some interesting commentary, including among other things a statement that “our board of directors takes the results of this vote seriously and is considering ways to address this concern. “ The filing also states that “the vote against the ‘say on pay’ resolution was primarily the result of votes cast by institutional investors that followed the recommendation of Institutional Shareholder Services (ISS), a proxy advisory service,” adding that  “the ISS report found a ‘disconnect’ between our CEO’s compensation in 2010 and the company’s total shareholder return.” The company then went on to explain why it disagreed with the ISS position.

 

What has started to happen now that the “no” votes are starting to accumulate is that some of the company’s whose shareholders voted against the lawsuits are now finding that the lawsuits are following along after the vote. These lawsuits are being filed in the form of shareholders derivative suits against the individual board of directors, the members of the board compensation committee, and in some instances even the company’s compensation consultants.

 

One example where a lawsuit followed after shareholders voted no on a say on pay resolution involves Beazer Homes. As Ted Allen noted on the Risk Metrics Group Insights blog (here), at   the company’s February 2, 2011 annual meeting, over 53% of its shareholders voted against the company’s say-on-pay resolution. The company’s filing of Form 8-K discussing the vote can be found here.

 

On March 15, 2011, a Beazer shareholder filed a derivative lawsuit in Fulton County (Georgia) Superior Court, against the company, as nominal defendant, the company’s board, its accountant and its compensation consultant. A copy of the court’s docket can be found here. A copy of a March 15, 2011 Bloomberg article about the lawsuit can be found here. The lawsuit alleges that compensation increases for executives “violated the company’s pay-for-performance policy and favored Beazer’s CEO and top executives at the expense of the corporation.”

 

Another company that became involved in a shareholder suit after a say-on-pay vote, albeit before the Dodd Frank Act was enacted, was Occidental Petroleum. As described in its February 24, 2011  filing on Form 10-K (here) , the company was involved in a total of three different shareholder suits relating to compensation issues after shareholders voted on a compensation resolution. The first lawsuit, filed in federal court in Delaware in May 2010, alleged that the company’s board and certain of its executive officers had made a “false and misleading proxy solicitation” in connection with seeking shareholder approval of bonus compensation standards. All three lawsuits alleged corporate waste and breach of fiduciary duty for excessive compensation. The 10-K states that the first of the two suits was settled and the other two suits were dismissed with prejudice. However the filing does not disclosure the terms of the settlement. 

 

In an April 17, 2011 post on the Harvard Law School Forum on Corporate Governance and Financial Regulation blog (here), attorneys from the Schulte Ross & Zabel law firm note that there are a number of negative consequences that follow in the wake of a negative say on pay vote, obviously referring to the Occidental case described above as well as other possible litigation:

 

The vote may translate into votes against directors. It also is likely to result in significant unfavorable publicity, which was the case at all 3 of the companies that received negative votes on [Say on Pay] iin 2010. In addition, lawsuits alleging breach of fiduciary duty and corporate waste were filed against directors at 2 of the companies that received a negative SOP vote in 2010. In one case, the lawsuit was settled, while it is still pending at the other company. At both of these companies, there also were changes to executive compensation policies and/or leadership.

 

At the 2 companies that have thus far had negative outcomes on SOP resolutions in 2011, in preparation for a possible lawsuit, plaintiffs’ firms already have announced investigations on behalf of shareholders concerning breaches of fiduciary duty …

 

The fact that there is litigation relating to executive compensation is not all that surprising, given what a hot button issue executive compensation as been in recent years. What is surprising is that the litigation is attempting to capitalize on the say on pay vote. For starters, the statute is quite clear that the required vote is not binding on the company or its board. Moreover, Section 951(c) expressly states, among other things that the shareholder vote “may not be construed” to “create or imply any change to the fiduciary duties of such issuer or board of directors” or to “create or imply any additional fiduciary duties for such issuer or board of directors.”

 

But even with the seeming limitations in the statute, the simple fact is that the vote is required and shareholders get to say that they disapprove of the company’s compensation practices. In April 26, 2011 post on his eponymous blog (here), UCLA Law Professor Stephen Bainbridge states that he knew these kinds of problems were coming when Congress incorporated the advisory say on pay provision in the legislation, having warned that the process “would be abused and turned from a supposed non-binding voting exercise into a club to beat directors with.” As Professor Bainbridge notes, that appears to be exactly what is happening.

 

Of course, merely because lawsuits are filed does not mean the suits are meritorious, and there is nothing that says that these cases are necessarily going anywhere. But they will still be costly to defend. And the fact that the Occidental case noted above was settled (albeit under undisclosed provisions) suggests that there could at least potentially be expense involved in trying to resolve these cases as well.

 

The defense expense involved as well as the possible costs of resolution make these kinds of cases a problem for D&O insurers. (Indeed, at least one observer noting the arrival of these kinds of suits expressly stated  that the D&O insurers had “better start watching what happens with Say on Pay.”).

 

One of the recurring discussions amongst D&O insurance professionals since the enactment of the Dodd Frank Act has been the extent to which the Act may increase or exacerbate D&O claims activity. The full impact of the Dodd Frank Act will only be revealed in the fullness of time. But while the full picture develops, one thing that is clear is that the Act’s Say on Pay provisions could be contributing to increased  D&O claims activity.

 

Maybe You Can’t Save the World, But You Can Help People Help Themselves: The Hesperian Foundation is a non-profit organization that publishes a book for people who do not have access to professional medical care called “Where the Is No Doctor.” The book has been translated into many languages and has been distributed around the world.

 

Here is a letter that was recently sent to the Foundation from someone who had received one of the books years ago:

 

About sixteen years ago, I was honored to receive from your august foundation the 1992/94 revised and reprinted precious book …”Where There is No Doctor.” I learn with great pleasure that you’ve published the 2010 revised edition…

 

I’m thus applying to you once again to kindly post me one book of this 2010 revised edition. I’m a teacher living and working in this densely populated suburb of Dakar where illiteracy and poverty rates are still very high. Infectious diseases like malaria, TB, STDs and influenza, and contagious but still deadly diseases like cancer, high blood pressure, diabetes, asthma, sickle cells, kidney failure, hepatitis, ulcers, general and particularly joint pains, etc., are widespread here. Dermatosis, worms, eye problems (cataract, glaucoma), teeth ache and depression or stress-related psychiatric disorders are also very frequent. In the neighboring countries, heavy rainfall forest nations like Sierra Leone, Liberia and the two Guineas …deadly diseases like typhoid, cholera and AIDS add up to the above mentioned somber list.

 

I’m persuaded that your in-depth and well illustrated book will again be of great help to us. As an underdeveloped country, the vast majority of people here don’t have access to computers and to the Internet. We thus very largely still depend on books like yours to learn from and to teach people in the community. We shall thus be very grateful to you and your Foundation to receive one from you…

 

The first thing I did when I read this letter was that I got out a checkbook and wrote the Foundation a check for $50, which is the all-in cost for processing and shipping the book to East Africa. If one book can help with so many different kinds of problems then it needs to be provided to as many people as possible.

 

The Foundation gets letters like this all the time, asking for copies of the book in specific languages or addressing specific situations. Among other things, the Foundation recently posted a Japanese language version of the book online, because so many earthquake victims, who may previously have the best medical care in the world, now do not have access to a doctor. Victims of the Haiti earthquake continue to depend on the book as a guide to the prevention of the spread of cholera.

 

The thing I particularly like about this book is that it is not a mere handout; it is a form of personal empowerment. The people who have access to one of these books can learn what they need to do to care for themselves, which is the first and most important step of self-improvement.

 

I was absolutely delighted to be able to make a donation so that a book could be sent to the Senegalese teacher whose letter I reproduced above. If you would like to help others just like him, please consider making a donation by visiting the Foundation’s website, here.

 

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One of the propositions on which most commentators seem to agree is that perverse compensation incentives helped fuel the global economic crisis. For example, last Wednesday, formed Fed Chairman Paul Volcker said in a speech that one of the causes of the financial crisis "was the ultimately explosive combination of compensation practices that provided enormous incentives to take risk." Other commentators have made similar assertions.

 

Given these sentiments, it comes as no surprise that among the first reform initiatives to emerge in the wake of the economic crisis are proposals to regulate compensation practices.

 

The most attention-grabbing example of this compensation-related reform agenda is last week’s news that the Federal Reserve is planning to issue bank compensation rules that would, according to the Wall Street Journal (here), "inject government regulators deep into compensation decisions traditionally reserved for the banks’ corporate boards and executives." Under this plan, the Fed would review – and could reject or amend – any compensation policies to make sure they "don’t create harmful incentives."

 

If these reforms are enacted, they could represent a significant potential expansion of bank board liability exposures. As reflected in a September 19, 2009 Wall Street Journal article entitled "Boards Face Expanded Responsibilities" (here), the proposed Fed rules "could increase time demands, recruitment challenges and legal exposures for boards."

 

Because the proposed Fed plan could lead to the Fed’s review of compensation for "many lower-level employees, such as big traders and groups of loan officers," the plan could "force directors to scrutinize pay practices for more employees," as "board members might have to keep tabs on pay arrangement for thousands of employees."

 

The Fed plan is not the only reform initiative that could impose increased compensation-related burdens on corporate boards. As detailed in a September 17, 2009 memorandum from the Pillsbury Winthrop Shaw Pittman law firm entitled "Executive Pay Reform Poses Complex Risks for Compensation Committees" (here), there are a variety of legislative proposals now working their way through Congress that could impose increased compensation-related burdens on corporate boards.

 

Of particular interest here is H.R. 3269, The Corporate and Financial Institution Compensation Fairness Act of 2009, which passed the House on July 31, 2009, and has now moved to the Senate for further review and possible amendment. According to the law firm memo, the Senate is likely to address the Act before the end of the year.

 

As described in the legal memo, the Act among other things embodies the principle that "the process of establishing executive compensation schemes should be transparent, protect against bias and provide enhanced accountability." The memo goes on to note that "notwithstanding passage of the Act, evolving corporate governance practices and pressures from shareholder advocates will ensure an enhanced role for compensation committees in fashioning the next generation of executive compensation policies and programs."

 

The bottom line is that as a result of regulatory, legislative and other initiatives, boards will face an increased array of compensation-related burdens and responsibilities. These burdens will not only increase the amount of time and effort that boards will be required to spend on compensation issues; they could also expand the board’s potential liability exposures regarding compensation issues.

 

In a prior post (here), I noted that Executive Compensation may be the "new front line in the litigation wars." The various regulatory and legislative initiatives now emerging seem likely to ensure that compensation issues will define the front line of the litigation wars for years to come.

 

Will Industry Get Out in Front on This Issue?: Many companies and their executives are well aware of the possibility of regulatory or legislative action regarding compensation issues, and at least some of them are working hard to get out in front of the issue. In that regard, on September 21, 2009, The Conference Board issued a report on the topic of executive compensation, containing proposals echoing the sentiments and even some of the specifics of the regulatory and legislative initiatives. A copy of the report can be found here.

 

As reflected in the September 21 press release, the recommendations are intended to try "to restore credibility and increase trust in pay practices and oversight." The recommendations include certain "Guiding Principles," including try to "establish a clear link between pay, strategy and performance." The Principles also recommend that public companies should "foster transparency with respect to compensation practices and appropriate dialogue between boards and shareholders."

 

A September 21, 2009 Bloomberg article about The Conference Board's report and proposals can be found here.

 

Subprime Update: The Interview: On September 21, 2009, Bruce Carton of the Securities Docket interviewed me in connection with my recent interim update on the subprime and credit crisis class action securities litigation. The interview can be found on Securities Docket, here, and is also embedded below. My prior post with my detailed update about the subprime and credit crisis litigation can be found here.

 

 

 

 

 

 

 

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By the SEC’s own account, an enforcement action the SEC initiated on July 22, 2009 represents the first occasion on which it has used the Sarbanes-Oxley Act’s "clawback" provision to recover compensation from an individual not otherwise alleged to have violated the securities laws. While this type of action apparently was contemplated by the statute, it has never been pursued before and it raises some interesting questions.

 

As reflected in the SEC’s July 22, 2009 press release (here), the SEC enforcement action charges Maynard L. Jenkins, the former CEO of CSK Auto, with violation of Section 304 of the Sarbanes Oxley Act, the statute’s compensation clawback provision. The action seeks to compel Jenkins to reimburse CSK Auto for the more than $4 million he received in bonuses and stock sale profits "while CSK was committing accounting fraud." A copy of the SEC's complaint can be found here. (Hat tip to the Courthouse News Service for the complaint.)

 

In May 2009, the SEC brought a settled enforcement action against CSK for filing false financial statements for fiscal years 2002 though 2004. The SEC has also brought a separate civil enforcement action against four CSK officials, but Jenkins is not among the officials that the SEC is pursuing.

 

Section 304 does provide that if a company restates its financials, then the company’s CEO and CFO "shall reimburse" the company any bonus compensation received during the 12 months following the restated period, as well as any stock sale profits earned during those twelve months.

 

There is no requirement in Section 304 that the CEO or the CFO from whom the reimbursement is sought have any involvement in the events that necessitated the restatement. Indeed, the statute doesn’t require any showing of wrongdoing or fault at all.

 

Professor Larry Ribstein criticizes the SEC’s use of the statute this way in a post on his Ideoblog (here), for "punishing business executives even when they are not accused of making a mistake." Jenkins undoubtedly will attempt to challenge the SEC’s attempt to use the statue this way. This provision has never been challenged on this basis before, so it will be interesting to see whether it withstands the legal challenge.

 

The SEC’s use of the statute in this way will undoubtedly add yet another item to the long list of criticisms of Section 304. As noted here, the statute previously has been criticized, among other reasons, because it lacks a private right of action; because it can only be used against the CEO and CFO, but not other corporate officials; and because it is only available in the event of a restatement, but not for other accounting discrepancies. Now it will be criticized as well because it can, if the SEC’s position withstands judicial scrutiny, effect a forfeiture without a requirement of fault, involvement or knowledge of the circumstances requiring the restatement.

 

To be sure, the logic of the statute is that since the financials were restated, the compensation was never earned in the first place. But litigation has its costs, and the burden an executive hit with a suit like this must endure goes beyond just the compensation he or she might be required to return. Among other things, defending against an SEC enforcement action can be extremely costly.

 

An executive facing an action like this might well seek to have his or her defense expenses paid by the company’s D&O insurer. But there could be problems with that as well. There would likely be no coverage under the typical D&O policy for any returned compensation, among other reasons because of the standard exclusion for claims for any "profit or advantage" to which the executive was "not legally entitled."

 

Many of these exclusions are written with a broad preamble (that is, precluding coverage for any loss "based upon, arising out of, or in any way relating to"), which some carriers might attempt to rely upon to preclude coverage not just for the returned compensation but for costs incurred in defending against the claim, even before a liability finding. While this interpretation of the policy would be highly suspect, the possibility of this interpretation highlights the need to try to revise the exclusion to require an actual judicial determination of the absence of "legal entitlement" to the profit or advantage before the exclusion’s preclusive effect is triggered. This revision may help to ensure that if an executive is hit with one of these suits that there is at least insurance coverage available for the executive to mount a defense.

 

An interesting July 22, 2009 Bloomberg article discussing the case can be found here. The article quotes a number of commentators with a variety of perspectives on the SEC’s action.

 

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Litigation over executive compensation is nothing new. The long-running clash over Richard Grasso’s $187 million NYSE pay package is only one of many titanic legal battles compensation issues produced in the past. But executive compensation litigation recently seems to have entered a new phase, fueled by moral outrage.

 

Drawing on popular anger evidenced most recently in the outrage surrounding the AIG bonuses, these most recent compensation-related cases could represent an even more pronounced litigation threat than prior lawsuits over pay. The same forces driving the litigation have also produced a variety of other corporate and social responses, some of which may or may not fully serve the purposes of overall social utility.

 

Among other recently filed lawsuits involving executive compensation is the derivative complaint filed on April 1, 2009 in California (Los Angeles County) Superior Court against the current AIG CEO Edward Liddy and several other AIG directors and officers. The complaint (copy here) among other things alleges that "there was no rational business purpose or justification for these lucrative additional payments, particularly given AIG’s deteriorating financial condition and dismal financial performance," and described Liddy’s explanation of the bonus payments as "outrageous on its face" and "absurd." The complaint seeks to recover damages for corporate waste, breach of fiduciary duty, abuse of control and unjust enrichment.

 

The bonuses paid to Merrill Lynch employees at year end just prior to the consummation of the company’s merger with Bank of America also features prominently in the shareholders’ litigation filed against Bank of America earlier this year, following the revelation of Merrill’s massive and previously unreported losses.

 

The $68 million exit package awarded Citigroup CEO Charles Prince following his November 2007 departure from the company is the subject of one of the claims in a Delaware shareholders’ derivative suit against Citigroup’s board. The claim, which alleges waste, is particularly noteworthy, because in a February 24, 2009 decision (here) in which the Delaware Chancery Court otherwise dismissed the plaintiffs’ claims against the Citigroup board for failure to monitor the company, the court found that the claim related to Prince’s compensation had been adequately pled. Unlike plaintiffs other claims, the claim for waste survived the motion to dismiss. An April 2009 memo entitled "Executive Compensation Under Fire" (here) from the Greenberg Traurig law firm described the denial of the motion to dismiss in the Citigroup case on the waste issue as "an unusual move from the traditionally pro-business courts."

 

As noted on the CorporateCounsel.net blog (here), the Delaware Court’s ruling in the Citigroup case regarding the compensation claims could be the most significant part of the decision and could suggest a possible judicial receptivity to waste claims related to executive compensation. The Greenberg Traurig memo cited above comments that as a result of this decision, "don't be surprised if more companies face similar challenges to executive compensation in the future," adding that these challenges might include not only a derivative suit like the one involving Citigroup, but also shareholder demands on the board; books and records requests; and even proxy contests.

 

An April 6, 2009 Law.com article entitled "Executive Bonuses Triggering Lawsuits Nationwide" (here) observes that litigation triggered by executive compensation controversies not only include claims of excess compensation but also lawsuits ranging "from corporate officers who allege their companies reneged on bonuses to officers who believe they were fired for protesting them." The article, which cites several examples of each of these kinds of claims, also notes that "attorneys are bracing for more litigation and legislation involving executive bonuses and compensation matters."

 

In addition, another recurring theme currently surrounding executive compensation is the possibility of a clawback remedy, to recover compensation already paid, which is a topic I previously discussed here.

 

One positive consequence of the current furor over executive compensation is that at least some companies have become more solicitous of shareholders’ views on pay. Indeed, as discussed in an April 6, 2009 Wall Street Journal article entitled "Companies Seek Shareholder Input on Pay Practices" (here) reports that biotech firm Amgen invites its shareholders to complete a 10-question online survey to determine the shareholders’ views on whether the company’s compensation plan is based on performance and whether performance goals are clearly disclosed and understandable. The article identified other companies that are taking similar steps to consult or enlist shareholders.

 

That said, the actions taken based on current popular outrage over executive compensation issues also have an ugly side. The stones thrown through the home windows of former RBS chairman Fred Goodwin and the French workers’ recent seizures of local managers, among other recent examples, suggest the possibility that the current populist backlash could slip into far more dangerous manifestations, which is one of the dangers when politicians play to the galleries on these kinds of issues.

 

Popular anger over bonuses paid to money-losing managers is understandable. Indeed Goldman Sachs Chairman and CEO Lloyd Blankfein has said (here) that he recognizes why the public is angry and called for a reform of the way financial institution executives are compensated, particularly at companies receiving government bailout funds.

 

All the same, we should take care as a society that our proclivity for blamecasting and scapegoating does not unleash darker forces. Social disorder has arisen in past economic crises, and there is nothing that says that it can’t happen again.

 

An April 7, 2009 Wall Street Journal op-ed column considers (here) how generalized populist outrage can quickly transform into nationalist or ethnic rage.

 

My apologies to The Economist  for using the cover art from this week's issue of the magazine to lead this post. I figure that on the cover of last week's issue of the magazine, they shamelessly imitated the iconic Saul Steinberg Map of New York cover art from the March 29, 1976 issue of The New Yorker Magazine. In its original form, Steinberg's map reflected a view of the world as seen from New York's Ninth Avenue. On the cover of last week's issue, The Economist adapted Steinberg's map as a contemporary map of Beijing, adding an apology for the adaptation. I extend to The Econmist the same apology here for my adaptation of the magazine's cover art here.

 

Subprime Securities Litigation: Early Trends: Even though the subprime and credit crisis-related litigation wave recently entered its third year (as I noted here), and though there have been a few settlements as well as a few rulings on motions to dismiss (refer here), by and large, the cases remain only in their earliest stages.

 

Nevertheless some trends have begun to emerge, as detailed in the March 23, 2009 memorandum from the Gibson Dunn law firm entitled "Suprime-Related Securities Litigation: Early Trends" (here). The memo does a particularly good job categorizing the various kinds of allegations that plaintiffs have alleged as well as the defenses that defendants have asserted. As for what may lie ahead, the memo states that "there is unlikely to be any slowdown in the near future of new filings of securities cases related to the credit crisis."

 

The National Map of Bank Distress: The FDIC did not close any banks this past Friday night, so the number of year-to-date bank failures remains at 21, and the total number of bank failure since January 1, 2008 remains at 46.

 

Those readers who are tracking these banking-related developments closely may want to refer to this nifty interactive graphic (here) from TheStreet.com, on which they have plotted the bank closures since January 1, 2008 on a map of the United States. Cool.

 

Some Things in the Insurance Industry Never Change: In his enjoyable book about the rebuilding of London following the Great Fire of 1666 entitled London Rising, author Leo Hollis discusses the innovation Nicholas Barbon introduced when he launched "the first fire insurance company in the world." Hollis writes that

 

His scheme was brilliantly simple: it offered a defence against the risks of living in the city while also making him a healthy profit. For a premium of 2.5 per cent of the yearly rent for brick buildings and 5 per cent for wooden-frame structures he offered insurance against fire for terms of seven, eleven, twenty-one and thirty-one years. By the 1680s, he would have over four thousand subscribers.

 

However, insurance industry behavior pattern apparently were established even in the industry’s earliest days; Hollis notes that "the problem with innovation is that it is often copied and Barbon’s ideas were swiftly replicated." The City Corporation offered its own competing scheme and offered terms for life. Barbon "had to work hard to sell his services before the opposition stole his market," while the Corporation soon found "that it was offering too much to get customers."

 

So it may be said, with respect to the insurance industry’s apparently inexhaustible capacity for self-destructive competition, ‘twas ever thus.

 

And Finally: On behalf of everyone who has watched as much college basketball on TV over the last few weeks as I have, I would like to make a motion – that is, that every single person associated in any way with the production or distribution of the Taco Bell "nacho drag" commercial should be taken out and summarily shot, without benefit of clergy. All those in favor say "Aye."

 

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The recent news about the eleventh hour award of nearly $4 billion in bonuses to Merrill Lynch employees is only the latest in a series of events exciting enthusiasm for "clawbacks" of allegedly excessive or undeserved Wall Street bonuses. Reports that New York City financial firms disbursed $18.4 billion in cash bonuses is 2008 added further fuel to the fire.

 

Senator Chris Dodd stated, with particular reference to executives receiving bonuses from financial institutions benefiting from government bailouts, "I’m going to look at every possible legal means to get that money back," adding "I’m going to be urging – in fact not urging, demanding—that the Treasury Department figures some way to get the money back."

 

President Obama, for his part, referred to the award of bonuses during a recession and while financial companies are seeking financial help to be "shameful" and the "height of irresponsibility."

 

The idea of compelling executives to disgorge compensation has been a recurring part of the public discussion surrounding the current economic crisis. The suggestion that the government should clawback financiers’ prior compensation has been a rallying cry for academics (here) and commentators (here) alike.

 

Indeed, the Dealbook blog reports (here) from Davos that a discussion of the topic of executive compensation turned a conference session into " a bit of a lynch mob, Davos-style" in response to a proposal to force those financiers who benefitted from the boom to "disgorge some of the money they ‘earned’ in bonuses based on profits that have since vanished."

 

This lynch mob mentality is familiar to those who recall the public outcry that accompanied the last era of corporate scandals. In fact, the perceived compensation excesses at Enron and Tyco, among others, resulted in a statutory provision specifically designed for the purpose of clawing back unwarranted compensation, Section 304 of the Sarbanes Oxley Act.

 

Section 304 has in fact been used to recover executive compensation, in the noteworthy options backdating settlement involving UnitedHealth Group (about which refer here). However, the fact that over six years’ after the enactment of the statutory clawback provision that there is only one noteworthy example of its utilization underscores the provision’s limited usefulness.

 

Simply put, and as discussed in detail here, Section 304 has several critical limitations: the provision lacks a private right of action; the provision’s language is poorly written; and it can only be used against the CEO and the CFO, limiting its use against other executives.

 

Moreover, as discussed in a December 24, 2008 CFO.com article (here), a federal district court recently ruled that the provision cannot be enforced against a company’s CEO or CFO if the company did not restate its financial results, even if the company had accounting discrepancies. The restriction clearly could further limit the provision’s usefulness and could constrain the government’s attempt to use the provision to recover the recent controversial bonus payments.

 

There are, however, other legal avenues that litigants might pursue to try to recover executive compensation, as discussed in the January 29, 2009 New York Law Journal article entitled "Limiting, Clawing Back Executive Pay in the Wake of the Financial Bailout" (here) by David Pitofsky and Matthew Tulchin of the Goodwin Proctor law firm.

 

The authors note that while the business judgment rule traditionally has shielded compensation decisions "shareholders seeking equitable rescission and restitution via derivative suits have been successful in recovering ill-gotten gains, even in the absence of compelling proof of personal impropriety." The authors cite as an example the recovery of $40 million in bonuses from HealthSouth CEO Richard Scrushy.

 

The authors also reference the mixed results presented in recent attempts to use state corporate governance laws to recoup executive compensation. On the one hand, they note the unsuccessful regulatory efforts to recoup a $187 million compensation package from former NYSE Chairman Richard Grasso (about which refer here).

 

On the other hand, the authors also note the more recent and successful use of New York’s fraudulent conveyance laws by current New York Attorney General Andrew Cuomo, who obtained AIG’s agreement, in response to the Attorney General’s demand letter, to freeze salaries and eliminate bonuses for certain former top AIG executives. (An October 15, 2008 New York Times article discussing Cuomo’s letter can be found here.)

 

University of California law professor Jesse Fried, among others, suggests (here) that the New York fraudulent conveyance laws, upon which Cuomo relied in his efforts involving AIG, might be used to recover unwarranted bonuses. Fried points out that the statute applies to all firms in New York, even those that have not applied for bankruptcy, and gives creditors the right to recover payments made to insiders under certain circumstances.

 

Provisions regarding executive pay were in fact a part of the federal bailout bill enacted by Congress last fall. However, amendments specify that the provision only applies to firms that receive government bailout funds by selling assets to the government in an auction. Because the bailout funds have not been deployed as originally intended to buy assets, the compensation recoupment provision may prove "toothless," as discussed in a December 18, 2008 Washington Post article (here).

 

Nevertheless, the lynch mob mentality in evidence at Davos is likely to continue to arise elsewhere, and in all likelihood, popular interest in recouping executive compensation will continue as a prominent topic while Congress continues to grapple with the current economic crisis.

 

Among other things, we can also expect continued discussion on whether or not Congress should enact a legislative limit on executive pay, as discussed in Robert Frank’s January 3, 3009 New York Times column (here).

 

In addition we can expect increasing pressure on companies to adopt their own clawback provisions, either as part of their incentive compensation plan, as governance policy, or as a statement of intent. My prior post discussing corporate clawback policies can be found here.

 

Whenever the issue of possible litigation against corporate officials comes up, the question arises concerning who will bear the costs. Obviously, the amounts of any compensation clawed back or disgorged would not be covered by the typical D&O policy. However, under the wording of the typical policy, a corporate official that is the target of a compensation clawback lawsuit would have substantial grounds on which to argue that his or her costs of defending against the suit should be covered.

 

To the extent that current popular sentiment for compensation recoupment translates into litigation, the resulting defense expense could become yet another area of growing claims expense for increasingly beleaguered insurers.

 

The Heat is On: Banco Santander started it, with its offer to make good on its clients' Madoff related losses. The word is out now, and at least some other banks have gotten the message.

 

As reported in the January 29, 2009 Financial Times (here), the National Bank of Kuwait has fully reimbursed all of its clients that lost money on the Madoff-related Ponzi scheme -- full reimbursement meaning both the clients initial investment as well as "the gains, thought to be ficticious, that they thought they had made."

 

As the Financial TImes article notes, the NBK move "puts pressure on other banks and fund managers whose clients lost money in Mr. Madoff's alleged fraud." (I wonder why the FT found it necessary to add the work "alleged.") The article goes on to note that NBK had the advantage of relatiively small losses to cover

 

Proud to Be a ‘KM Pick’: Knowledge Mosaic, the online subscription information service for attorneys, regulators, journalists and academics, offers a number of excellent services, including a weekly newsletter entitled Wired Mosaic. A feature of the newsletter is the KM Pick, in which the newsletter highlights a legal-oriented blog.

 

I am proud to report that in the January 29, 2009 issue of the newsletter (here), The D&O Diary is featured as the KM Pick. Modesty prevents me from reciting here the blush-inducing words of the newsletter's glowing encomium, but suffice it to say that I sure hope everyone will take a look at the item (right hand column, scroll down).

 

 

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Congress, regulators and leading figures in the Bush administration worked overtime this weekend and have crafted a compromise bill that apparently will be put to a congressional vote this upcoming week. A copy of the current discussion draft (which House Speaker Nancy Pelosi says will be “frozen” in this form) that likely will be put to a vote this week can be found here.

 

At 110 pages, the current draft is significantly more voluminous than the initial three page draft Treasury Secretary Henry Paulson initially introduced last weekend.

 

 

As reflected in the bill’s summary (here), the “Emergency Economic Stabilization Act of 2008” not only provides up to $700 billion in funding to buy assets under the Troubled Asset Relief Program (TARP), it also authorizes the Treasury Department to modify troubled mortgage loans. The Act also requires companies selling assets to the government to provide warrants so that taxpayers benefit from the future growth of any company selling assets to the government. The Act also contains provisions relating to executive pay, as discussed below.

 

 

Finally, and by contrast to Paulson’s initial proposal, the Act provides for significant oversight and even for judicial review under certain circumstances.

 

 

The financial institutions able to take advantage of the Act include not only banks, but also any “savings association, credit union, security broker or dealer, or insurance company.” The assets that may be acquired include mortgage-backed assets created before March 14, 2008, a date apparently coinciding with the collapse of Bear Stearns. The Secretary, in consultation with other authorities, may also designate other assets to be included in the program.

 

 

The Act actually ranges far afield, particularly with respect to matters that historically have been viewed as internal or at most the province of state law. Section 111 of the Act specifies that when the government acquires a financial position in a participating institution, the Secretary of the Treasury “shall require that the financial institution meet appropriate standards for executive compensation and corporate governance.”

 

 

This section specifically provides that the standards for compensation and governance shall include “limits on compensation that include incentives for executive officers …to take unnecessary risks that threaten the value of the financial institution;” a “provision for the recovery by the financial institution of any bonus or incentive compensation … based on criteria that are later proven to be materially inaccurate;” and a prohibition on “golden parachutes.”

 

 

Congress apparently also wants to get into accounting practices and policy. In Section 132, the Act specifies that the SEC shall have the authority to suspend mark-to-market accounting under FASB 157. Section 133 of the Act requires the SEC to conduct a study of the effects and impacts of FASB 157.

 

 

In the days ahead, there undoubtedly will be further comment on the Act’s provisions (perhaps there will be further comment even on this blog). But more interesting than the Act’s provisions will be the Act’s practical effects. The purpose of the Act is to try to avoid financial catastrophe and to restore financial market functioning. The storm clouds that suddenly have appeared over a number of European banks, and the further questions involving U.S. financial institutions, serves as a reminder that the circumstances indeed are perilous.

 

 

In the days ahead as the Act is put to a vote, the question will be whether the ominous dynamic that has overtaken the financial markets finally relents. Unfortunately, as noted on the Real Time Economics blog (here), the economy may be in trouble regardless of the bailout.

 

 

Among other effects also to be watched include the impact on upcoming elections. The electorate is worried, uneasy, and will likely exhibit reactions across a wide spectrum. While the members of Congress may feel they had no choice with regard to the bailout bill, there may still be considerable voter backlash.

 

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If the facts don’t fit, you must remit. That seems to be the view of an increasing number of companies, as they have adopted provisions requiring repayment of executive compensation found to have been based on incorrect financial statements.

The concept of compensation clawbacks was actually built into the Sarbanes Oxley Act. Section 304 requires CFOs and CEOs to reimburse their companies for incentive compensation and stock sales profits if the financial statements for that year are restated and the restatement is due to “misconduct.”

According to a June 2008 report (here) from the Corporate Library, an increasing number of companies have adopted their own clawback provisions, “either as part of the rules of an incentive plan, as governance policy, or simply as a board statement of intent.”

In its prior 2003 review, the Corporate Library had found that just 14 companies had adopted clawback provisions. But in its June 2008 survey, the report found that 295 of the 2,121 companies examined had “disclosed the adoption and implementation of a clawback provision of one kind or another.”

The survey found that the provisions vary from company to company, but could generally be classified as either “performance based” (if the provision applies to all executives who received an incentive payment of some kind based on incorrect financial) and “fraud based” (if it applies only to those executives who have engaged in fraudulent activity or misconduct that has caused a restatement). The survey found that 44.4% of the clawback provisions were “fraud-based” and 39% were “performance based.” An additional 16.6% of the provisions could not be classified.

The report cites several examples of the clawback provisions and even notes one example, involving Warnaco, in which a clawback has already occurred. The company reported in this year’s proxy statement (here, see page 21) that its compensation committee had cut the incentive pay for three executives in 2006 by a total of $120,000. The reduction occurred after the company restated its 2005 financial results due to certain accounting errors and irregularities.

These kinds of provisions have the support of various governance groups. As the June 8, 2008 New York Times stated in an article discussing the Corporate Library report (here), “why should executives keep compensation if it is discovered later that benchmarks were unmet?”

Not only do these kinds of provisions address basic principles of pay equity; they may also have a deterrent effect as well. Indeed, a June 4, 2008 CFO.com article entitled “Clawbacks Claw Their Way Into Corporate Strategy” (here), comments that “the emergence of clawbacks could be one factor in the recent decline in the number of financial restatements.” (For further background regarding the declining number of restatements, refer here.)

The possibility of a compensation clawback is not the only consequences that could affect executives at restating companies. A March 2008 study by Juan Manual Sanchez and Adi Masli of the University of Arkansas Sam M. Walton School of Business, Denton Collins of Texas Tech University, and Austin Reitenga of the University of Alabama entitled “Earnings Restatements, the Sarbanes-Oxley Act and the Disciplining of Chief Financial Officers” (here) found not only that companies restating earnings “have higher rates of involuntary CFO turnover,” but that CFOs of restating companies “face stiff labor market penalties.”

The authors looked at 167 restating companies and then matched them with a control company of comparable industry, size and age. The authors looked for instances where CFOs left the restating company within two years of the restatement. They then tracked the CFOs for four years to determine their subsequent employment.

The authors found “higher CFO turnover rates following restatements in both the pre- and post-SOX periods, which implies that governance mechanisms served to identify and discipline CFOs implicated in the restatements in both periods.”

The authors also found that “former CFOs of restatement firms are less likely to find a position with a job title that is comparable to their prior CFO position, less likely to find employment in a publicly traded company, or less likely to find a comparable position in a public firm.”

Finally, the authors found that “executives terminated in the post-SOX period appear to suffer greater reputational/labor-market penalties compared to the pre-SOX period, suggesting that firms are less willing in the post-SOX period to hire a former CFO with a tarnished reputation. This appears to be consistent with the intent of the legislation to increase executive accountability.”

With all the disincentives for bad behavior, one might optimistically hope that the sins of the past will not recur. Unfortunately, certain aspects of the current credit crisis arguably belie that hope. Nevertheless, one useful takeaway from this analysis is that the presence of corporate clawbacks could provide a deterrent for bad behavior, and could be a positive risk assessment factor.

Hat tip to the CFO.com for the reference to the academics research paper about career consequences for CFOs of restating companies.

Update on a Backdating Settlement That Went Awry: In a prior post (here), I discussed the recent opinion in which Judge Alsup used harsh language in rejecting the Zoran options backdating-related derivative lawsuit settlement. Among other things, Judge Zoran questioned the parties’ representations of the settlement’s value, and questioned the absence of any cash payment to the corporation.

According to a June 9, 2008 Forbes article entitled “Fee Fixers” (here), “it turns out that Alsup was on to something.” According to the article, on May 29, the lawyers resubmitted the settlement, but this time, the settlement included $3.4 million in cash, $3 million from Zoran’s insurance company and $395,000 from Zoran’s CEO and another executive. The article noted that “for having done such a good job,” the plaintiffs’ lawyers “have requested $1.5 million in fees and expenses, $300,000 more that the first time around.”

According to the company’s June 12, 2008 press release (here), Judge Alsup has granted preliminary approval to the settlement. The rejiggered settlement may have passed judicial muster. But let’s be explicit about what the sequence of events really consists of.  Basically, and other than with respect to the $395,000 payment, the insurance company is being asked to pony up the additional $3 million, and undoubtedly will also be called upon to pay the additional increment in the plaintiffs’ fees, as well as all of the additional defense expense incurred after the first settlement cratered. Perhaps there is nothing remarkable in all of this. But at some point, you really do start to wonder about the social utility of all of this activity. It is enough to make anybody cynical.

Hat tip to the 10b5-Daily (here) for the link to the Forbes article. Special thanks to Zusha Ellinson of The Recorder for the link to the Zoran press release.

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One of the legacies from the era of the corporate scandals is the lasting image of certain corporate leaders as “imperial CEOs” (refer here) – that is, as greedy, power hungry overlords who exploited their companies to their own enrichment and to the shareholders’ detriment. Excessive CEO pay remains a widely perceived marker for poor corporate governance and even for securities litigation risk. But recent scholarly analysis of senior corporate executive compensation suggests that outsized CEO pay may not only indicated weak governance, but may also be associated with company underperformance.

In a paper most recently revised in May 2008 entitled “CEO Centrality” (here), Lucian Bebchuk of Harvard, Martijn Creamers of Yale and Urs Peyer of INSEAD “examine the relationship between CEO centrality – the relative performance of the CEO within the top executive team in terms of ability, contribution and power – and the value, performance and behavior of public firms.”

In order to measure so-called CEO centrality, the authors used as a measure “the CEOs pay slice” (CPS) – that is, the “percentage of the aggregate compensation awareded to the firm’s top five executives captured by the CEO.” The authors hypothesized that higher CPS “will tend to reflect a greater relative performance of the CEO within the top executive team.”

In order to compute each CEO’s pay slice, the authors used data from Compustat’s ExecuComp databse from 1993-2004. The authors attempted to control for some factors that could influence the CPS, including the CEO’s tenure, the CEO's status as a large owner or founder, and the size of the company’s aggregate top-five compensation relative to peers.

The authors concluded that CEO centrality has a “rich set of relations with firms’ behavior and performance.” Specifically, the authors concluded that CEO centrality is correlated with

(i) lower (industry-adjusted) accounting profitability, (ii) lower stock returns accompanying acquisitions announced by the firm and higher likelihood of a negative stock return accompanying such announcements, (iii) higher odds of the CEO’s receiving a “lucky” option grant at the lowest price of the month, (iv) greater tendency to reward the CEO for luck due to positive industry-wide shocks, (v) lower performance sensitivity of CEO turnover, and (vi) lower firm-specific variability of stock returns over time.

The apparent correlation of outsized CEO compensation and “firms’ behavior and performance” tends to corroborate the view expressed, for example, by the Corporate Library (here), that “CEO compensation practices that are poorly aligned with shareholder interests remain a powerful indicator of potential securities litigation.”

While the authors’ conclusions seem intuitively correct to me, I do wonder whether certain aspects of the analysis are a refection of the time spread of the data used. The database is heavily weighted to the 90s and to the era before the corporate scandals and before the recent increased focus on corporate governance and on executive compensation. It might be interesting for the authors to perform the same analysis but to use only data from the five years after the enactment of the Sarbanes-Oxley Act. Perhaps the conclusions would be the same, but I do wonder whether or not the correlations would be as strong for the more recent years.

CEO compensation practices obviously are critical, but CFO compensation practices may also be significant, as I discussed on a recent post (here).

Countrwide Derivative Lawsuit to Proceed: According to a May 15, 2008 New York Times article (here), Judge Mariana Pfaelzer of the Federal District Court in Los Angeles has denied the defendants' motion to dismiss the shareholders' derivative lawsuit that has been filed against Countrywide Financial, as nominal defendant, and certain of its directors and officers. (A description of the lawsuit can be found here.)

The opinion is not yet posted on PACER so I have not had a chance to review it yet, but from the description in the times it sounds like it could be worth reading. Among other things, Judge Pfaelzer said, with respect to Angelo Mozillo's frequently revised 10b5-1 plan, "Mozillo's actions appear to defeat the very purpose of the 10b5-1 plans."  I will try to add a link to the opinion here when I can get my hands on a copy. (I would be grateful if any reader with access to the opinion could forward me a copy.)

UPDATE: A copy of the court's May 14, 2008 order in the Countrywide Derivative case can be found here.

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Commentators have long focused on CEO compensation as a leading corporate governance concern. Indeed, the Corporate Library has even suggested (here) that CEO compensation practices that “are poorly-aligned with shareholder interests” are “a powerful indicator of potential securities litigation.” While CEO compensation unquestionably is an important issue, academic research recently published by three Michigan State professors suggests that the CFO’s compensation may be even more important than that of the CEO.

In an April 15, 2008 paper entitled “CFOs and CEOs: Who Has the Most Influence on Earnings Management”(here),  John Jiang, Kathy Petroni and Isabel Yanan Wang report on their investigation “whether CFOs’ equity incentives are associated with earnings management, and whether earnings management is more sensitive to CFOs’ equity incentives than to those of the CEOs.” Prior research has focused primarily on CEOs’ compensation, based on conventional wisdom that because CEOs’ equity compensation was greater than that of CFOs, it should be more influential. In addition, it was generally presumed that because the CFO is the CEO’s agent and the CEO has the power to replace the CFO, “CFOs do not respond directly to their own equity incentives but only to the wishes of their CEO.”

Contrary to these prior assumptions, the authors posited that CFOs equity incentives “may have a stronger impact on earnings management than those of the CEOs, because CFOs have the ultimate responsibility for the management of the financial system, including the preparation of the financial report.”

The authors used a database for the S&P 1500 for the period 1993 through 2006, representing 17,542 firm years of compensation data. The authors examined the CFOs’ equity incentives in three settings where prior research had demonstrated an association between CEOs’ equity incentives and earnings management, namely (1) accruals; (2) the likelihood of beating earnings benchmarks; and (3) the likelihood of restatements.

Based on their analysis, the authors conclude that “because CFOs are primarily responsible for preparing the financial statements, the impact of their equity incentives on financial reporting dominates the impact of the CEOs’ equity incentives.” Indeed, the authors conclude that “earnings management is a key tool that the CFO can expertly use to respond to equity incentives.”

Although the paper has a number of interesting insights, perhaps the most interesting is the authors’ analysis of the way that CFOs respond to the prospect of option grants. The authors found that the occurrence of the grant of options to the CFO was positively correlated to the occurrence of an earnings miss (which would lower the option strike price and thus make the grant potentially more valuable). The authors further concluded that “the likelihood of missing earnings benchmarks is higher for stock options granted to the CFO relative to those granted to the CEO and in some cases significantly so.”

One of the fundamental tenets for the compensation of corporate executives is that the executives’ interests should be aligned with those of the shareholders, and that the best way to achieve alignment is through equity-based compensation. The authors’ research suggests, however, that equity-based compensation may not create alignment, but rather motivates earnings management. Indeed, the authors’ research could be read to suggest that the equity-based compensation could create incentives that are contrary to shareholders’ interests, because shareholders obviously have no interest, for example, in engineered misses of earnings estimates.

The authors do conclude that their research underscores the importance of the SEC’s recently adopted provisions requiring disclosure of CFO compensation. This disclosure, the authors state, “should be relevant to users of financial statements in evaluating the quality of firms’ financial reporting.”

Among those to whom the CFO compensation information could be of interest are D&O underwriters. While the authors’ research does not directly make the connection between CFO equity compensation and the incidence of securities lawsuits, the link the authors do establish between CFO equity incentive compensation and earnings management should be sufficient to suggest the relevance of CFO equity compensation for D&O underwriting purposes. If, as the Corporate Library proposes, CEO compensation is an important indicator of securities litigation susceptibility, then the research of these three Michigan State professors could be interpreted to suggest that CFO compensation is also an important indicator, perhaps even more so.

Hat tip to the CFO Blog (here) for the link to the academic research paper.

For Better or Worse – Unless You Wind Up in Jail: This blog does not ordinarily comment on domestic relations issues, but we did fund it noteworthy that, according to news reports (here), former Tyco CEO Dennis Kozlowski was about to reach terms for his divorce from his wife, the former Karen Mayo. Mayo is the former waitress whom Kozlowski married in 2001, and whose $2 million Roman-themed 40^th birthday party on Sardinia that same year ultimately proved to be a key component of Kozlowski’s later criminal trial.

According to news reports, Mayo had request that the couple’s assets be split equally and she also sought alimony. The news reports do not disclose whether Mayo will receive a portion of the $1/day Kozlowski now reportedly receives “mopping floors or slinging hash” to fellow inmates at the New York correctional facility where he is serving a term of between eight years, four months and twenty-five years.

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In a partial but significant victory in the New York Supreme Court Appellate Division, former NYSE Chairman Richard Grasso may have accomplished just enough to be able to keep his infamous NYSE pay package. In April 2004, Eliot Spitzer, then New York's Attorney General, sued Grasso to compel him to return the bulk of his nearly $190 million deferred compensation and pension package. Spitzer alleged in the Complaint (here) that the pay package was "objectively unreasonable" under New York law governing nonprofit institutions - the NYSE was a nonprofit institution while Grasso was its Chair - and that Grasso had improperly influenced or misled the NYSE's board of directors to obtain their approval.

In an October 2006 ruling, New York Supreme Court Judge Charles Ramos entered partial summary judgment against Grasso, holding that Grasso had breached his fiduciary duty and that Grasso must return almost $100 million. A copy of Judge Ramos's opinion can be found here. Grasso appealed from this ruling as well as prior rulings in which Judge Ramos had permitted the claims to proceed.

A May 8, 2007 opinion of the New York Supreme Court Appellate Division (here) reversed an earlier ruling of Judge Ramos (here), and granted Grasso's motion to dismiss the first, fourth, fifth and sixth causes of action against him. Each of the dismissed counts were ones that Spitzer had alleged that New York's Attorney General had an implied right of action to pursue under the states Not-for Profit Corporation law. The appellate court held, however, that "these four causes of action are not within the scope of the Attorney General's authority." The appellate court contrasted these four claims with the two claims against Grasso that were not dismissed; the other two claims were based upon specific statutory provisions granting the Attorney General the right to pursue a cause of action. In essence, the appellate court held that the Attorney General is not "authorized to bring causes of action against directors and officers of not-for-profit corporations other than the causes of action the Legislature expressly authorized the Attorney General to bring."

Even though two of the Attorney General's six causes of action against Grasso remain pending, this appellate decision represents a significant victory for Grasso and may ultimately allow him to prevail. Under the two remaining causes of action, unlike the four that were dismissed, the Attorney General must prove both that the payments were "unlawful" and that Grasso knew of the "unlawfulness." Whether or not the Attorney General can prove the unlawfulness of Grasso's pay package, proving that Grasso knew of the "unlawfulness" will be a difficult and perhaps impossible task.

With Eliot Spitzer now occupying the New York Governor's Mansion, the decision whether or not to proceed will now fall to New York's new Attorney General, Andrew Cuomo. Cuomo of course has nothing vested in the case, and he must now decide whether it is in New York's interest to try to overcome the obstacles and to try to compel Grasso to repay his compensation. According to AP (here), a spokeperson for Spitzer said the "state was expected to appeal." The same article quotes Spitzer as saying "This was just a technical issue related to some of the counts and was not the subject of the summary judgment we won." Well, maybe...

Grasso has made it clear that he intends to fight, and he has already expended a significant amount of his fortune fighting the case, as noted in a prior D & O Diary post (here, replete with quotations from Bleak House).

Because the appellate decision deals only with the Attorney General's authority to pursue supposedly implied causes of action under New York's Not-for-Profit Corporation law, it is unlikely to have any significant impact on other efforts to recoup allegedly excessive executive compensation.

Hat tip to the WSJ.com Law Blog (here) for the link the the appellate decision. A May 9, 2007 Wall Street Journal article discussing the decision can be found here (subscription required). A very detailed May 9, 2007 New York Law Journal article discussing the decision can be found here.

ISS Webcast: Adam Savett of ISS (and of the Securities Litigation Watch blog) will be hosting a webcast at 9:30 am on Wednesday May 9, 2007 on the topic Accountability Goes Global: International Investors and U.S. Securities Class Actions. Details about the webcast can be found here. Some of the preliminary findings to be discused are reviewed here.

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It is now a well-established part of the mythology of American capitalism that Warren Buffett still lives in the same modest brick colonial in Omaha, pictured above, that he bought in 1958 for $31,000. (According to Forbes magazine's annual survey of billionaires' houses, here, Buffett's home had a 2003 tax valuation of $700,000.) Intuitively, we believe that the relative modesty of Buffett's home tells us something about his values and priorities, just as we all probably make certain assumptions about the values and priorities of the occupants of the truly execrable miniature Versailles mansions that have sprouted in recent years on the far-flung fringes of most American cities --even Cleveland, for God's sake!

In one of the more interesting and entertaining articles I have read in a long time, Crocker Liu of the Arizona State University Business School and David Yermack of N.Y.U. Business School take a look at what else the size and valuation of CEOs' homes might tell us. In their March 2007 article entitled "Where Are The Shareholders' Mansions? CEOs' Home Purchases, Stock Sales, and Company Performance" (here), the authors' "central research question concerns the association between CEO real estate purchases and subsequent performance of their company."

The authors developed their hypotheses by questioning whether a CEO's home purchase more nearly indicates the CEO's commitment to their company and its community, or rather represents the CEO's "entrenchment," particularly if the CEO is unconcerned about liquidating their assets (especially their holdings in company shares) and investing in an expensive home so as to provide "a public signal about the executive's status and security."

In order to determine which hypothesis is accurate, the authors undertook some rather creative detective work to identify the homes of the CEOs of the S & P 500 companies (including, among other things, each home's location, size, valuation, date of acquisition, and method of financing). The authors ultimately were able to identify the homes of 488 of the CEOs, 164 of which the CEOs had acquired after taking office.

What the authors found out about the CEOs' homes is fascinating. The median CEOs' home is more than 5,600 square feet, and sits on over one and a quarter acres. The median 2006 market valuation of the CEOs' homes is $2.7 million (although this may be understated because some of the homes are sufficiently unique that there are no ready market valuations). 12% of CEOs' homes are on the waterfront, and 8.5% are on golf courses. The median distance from the office for CEOs' homes is 12.5 miles, but 16 of the CEOs live more than 1,000 miles from their company headquarters and another 16 live between 250 and 1,000 miles from their office.

With respect to the question about the correlation between the CEO's home purchase and company performance, the authors found that when a CEO buys a home, "future company performance is inversely related to the CEO's liquidation of company shares and options" to finance the transaction, even if the stock sales are small relative to the CEO's holdings. The authors also found that "future performance deteriorates when CEOs acquire extremely large or costly mansions or estates," regardless of the method of financing. The authors found a "significantly negative stock performance following the acquisition of very large homes by company CEOs," a negative trend that persists for several years after the home purchase.

The authors' assessment of this finding is that the CEO who purchases his or her home without selling shares is perhaps signaling their commitment to the company and expectation of future stock returns. The CEO who liquidates his or her shares to finance their home purchase , or buys a very expensive home, is signaling his or her perception of his or her status and security, and therefore the purchase represents a proxy for CEO "entrenchment."

The authors contend that these facts suggest an investment strategy, essentially shorting the shares of companies whose CEOs who acquire very large and expensive homes, but maintaining long positions on the companies whose CEOs acquired their homes without selling company shares. According to the authors, both ends of this strategy would substantially outperform the companies taken as a whole.

I find the authors' work intriguing, but I wonder whether the apparent link between the CEO's home valuation and corporate performance might not be a manifestation of what a former colleague of mine poetically calls "multicollinearity." That is, is the inverse correlation between CEO home valuation and corporate performance simply the quantification of another phenomenon - for example, the level of CEO compensation?

For the record, Buffett's home was not among the houses the authors studied, since Berkshire Hathaway inexplicably is not a part of the S & P 500. The authors' data set also does not include Bill Gates' $140 million, 66,000 square foot home, since he is no longer the CEO of Microsoft. Steve Ballmer's $8 million, 4,100 square foot home was included, however.

I am hoping that the authors' next article will compare the valuations of CEOs homes to those of the leading securities class action plaintiffs' lawyers. I suspect it would provide even more interesting analysis.

One of the Internet tools the authors used is the website, Zillow.com (here). If you have never visited the site, drop what you are doing immediately and go there. Just be prepared to spend the next few hours figuring out how much you neighbors', friends', and acquaintances' houses are valued for. Unless you really don't find things like that interesting at all. (Right...) Coincidentally, the April 4, 2007 Wall Street Journal reports (here, subscription required) that Zillow.com CEO Richard Barton is currently attempting to sell his Seattle home for $2.6 million (marked down from the intial asking price of of $3.475 million).

Special thanks to an alert reader (who prefers anonymity) for the link to the article.

Adults Only: When my oldest daughter was eight years old, she expressed an interest in reading The Hunchback of Notre Dame. (For reasons that no one who has actually read the book could possibly explain or understand, Disney had just released a childrens' cartoon movie based on the book.) I told her that I did not believe the book was appropriate for children. She of course asked why, and I told her that the book deals with "adult themes." She cocked her head at me and squinted her eyes and said, "You mean like real estate?"

Yes, like real estate. Exactly.

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Eliot Spitzer sued former NYSE Chairman and CEO Richard Grasso to compel him to return the bulk of his nearly $190 deferred compensation and pension package, alleging that the pay package was "objectively unreasonable" under New York law governing nonprofit institutions and that Grasso had improperly influenced or misled the NYSE's board directors to obtain their approval of the package. (The NYSE was a nonprofit institution while Grasso served as its Chair.) A copy of the complaint against Grasso can be found here.

Spitzer may have moved on the New York governor's mansion (refer here), but the case lives on, as highly contested cases will do. The case is currently on appeal, as Grasso challenges the entry of partial summary judgment against him by New York Supreme Court Justice Charles Ramos. Justice Ramos ruled in October 2006 that Grasso had breached his fiduciary duty and that Grasso must return almost $100 million. A copy of Justice Ramos's opinion can be found here.

Litigation at this level is expensive, but the magnitude of the expense involved may exceed even the inflated standards of our age. In a January 17, 2007 interview reported on Bloomberg.com (here), Grasso said that the "costs of all sides involved...may have exceeded $100 million," which the article notes is an amount almost equal to the amount the New York Attorney General is seeking. Grasso is quoted as saying, "I would not be surprised if the legal bill were in excess of $100 million." Grasso added that "This lawsuit is about honor. It is not about money any more."

Indeed. It is always about honor. But the money does play a role, however slight it may concern Grasso, and unless the goal of the lawsuit is a massive wealth transfer to the legal community, the expense apparently involved does raise certain questions.

Of course, Grasso's legal fee estimate may or not bear any relation to reality. Perhaps to a man accustomed to astronomical dollar figures, a number like $100 million is simply a proxy for a number of a very large size, sort of like the biblical author used the phrase 40 days and 40 nights. Grasso is also obviously motivated to characterize the lawsuit in a particular way, and so has every incentive to portray the lawsuit as excessive or even counterproductive.

But there unquestionably is something arresting about Grasso's estimate. The prospect that the lawsuit might consume in fees as much as the case ultimately is worth brings to mind the litigation travails of another Richard, Richard Carstone, who exhausted himself pursuing his interests in the matter of Jarndyce and Jarndyce in Dickens' novel, Bleak House. Perhaps the comparison between the two cases is not entirely apt, but there is a familiar resonance surrounding the magnitude of the fees and their relation to the matters in dispute.

The following excerpt from the novel (drawn from this source) captures the moment when the parties found the case to be "over" - not due to resolution on the merits, but because of the cumulative effect of the lawyers' fees (the excerpt begins with the words of Mr. Kenge, an attorney):

"For many years, the--a--I would say the flower of the bar, and the--a--I would presume to add, the matured autumnal fruits of the woolsack--have been lavished upon Jarndyce and Jarndyce. If the public have the benefit, and if the country have the adornment, of this great grasp, it must be paid for in money or money's worth, sir."

"Mr. Kenge," said Allan, appearing enlightened all in a moment. "Excuse me, our time presses. Do I understand that the whole estate is found to have been absorbed in costs?"

"Hem! I believe so," returned Mr. Kenge. "Mr. Vholes, what do YOU say?"

"I believe so," said Mr. Vholes.

"And that thus the suit lapses and melts away?"

"Probably," returned Mr. Kenge.

"Mr. Vholes?"

"Probably," said Mr. Vholes.

"My dearest life," whispered Allan, "this will break Richard's heart!"

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There is no particular reason why I should bestir myself to defend ousted Home Depot CEO Robert Nardelli: He certainly bagged sufficient swag to soften the blows of even his most outraged attacker. Yet I think it is important to incorporate into the modern morality play that his departure has become a fair recognition that by some measures his tenure as Home Depot's CEO was successful. From 2000 (when Nardelli joined the company) to 2005, Home Depot's revenue nearly doubled, from $45.7 billion to $81.5 billion, and during that same period Home Depot's profit increased, from $2.6 billion to $5.8 billion. Dividends quintupled. The company's return on capital increased almost 20 percent, a full 10 percentage points above its cost of capital.

Nevertheless, the consensus view seems to be that his ouster is a victory for shareholders, and that they have shareholder activists to thank. A typical example is the January 5, 2007 New York Times article entitled "Gadflies Get Respect and Not Just at Home Depot" (here), which states that "shareholder activists could claim one of their biggest prizes yet when Home Depot announced the resignation of its chairman and chief executive." The article also notes that since July, activists have also successfully pushed out the CEO's at Pfizer and Sovereign Bank.

In touting Nardelli's ouster as a shareholder activist success story, the Times article note that he had long been "a target of shareholder ire for his large compensation and the company's flagging share price." It is this latter point - Home Depot's flagging share price - that really seems to be at the heart of Nardelli's problems. A January 3, 2007 Fortune.com article entitled "Nardelli's Downfall: It's All About the Stock" (here) makes the connection explicit. Gretchen Morgenstern made the same point in her January 4, 2007 New York Times article entitled "A Warning Shot By Investors to Board and Chiefs" (here, subscription required), in which she says that Nardelli's compensation was "completely at odds with the dismal performance of Home Depot stock on his watch."

One question that needs to be asked is how much of what happened to Home Depot's share price had to do with Nardelli and how much it had to do with where the share price was when Nardelli took over. As PointofLaw.com points out (here), Home Depot's share price was already at stratospheric levels when Nardelli arrived.

But the more troublesome aspect of the criticisms about Home Depot's share price is the clear implication that Nardelli would still have a job (although he would be $210 million poorer) if he had managed to get the share price to go up. It used to be the conventional wisdom that the market determined a company's share price, not the CEO. Moreover, it has not been that long since corporate America faced a series of crises and scandals because too many CEOs seemed to think it was their job to engineer their company's share price rather than to run their company. Corporate activists may be congratulating themselves for their "victory" at Home Depot, but they should be very careful about the lesson here. The danger, as pointed out on the ContrarianEdge blog (here) is that "the ousting of Bob Nardelli sent a wrong message to America's CEOs : it taught them an incorrect lesson - manage the stock, not the company."

No one (at least not me) is going to defend the size of Nardelli's pay package. But as Alan Sloan points out in his January 4, 2007 Washington Post column "Don't Blame Nardelli" (here), the problem isn't Nardelli, it is "the contract that Home Depot's Board gave him." Home Depot's board comes in lot of criticism over Nardelli's compensation. A lot of other people also seem to want to blame the Home Depot board for the whole mess (see here).

Blaming directors for excessive CEO compensation has been a fruitful source of shareholder litigation in recent years. For example, shareholders sued the Disney Board for the $140 million severance paid to departing President Michael Ovitz. And the NYSE's Board faces litigation for the $190 million pay package paid to departed CEO Richard Grasso. The names Disney and NYSE resonate here because of their mystic chords of connection with Home Depot. One of the defendant board members in the NYSE case is Kenneth Langone, who also happens to be a Home Depot board member. Langone also was a director of General Electric, and helped to recruit Nardelli to Home Depot from GE. According to a Janaury 5, 2007 New York Times article (here), shareholder activists blame Langone for both Grasso's and Nardelli's pay packages. The Disney connection to Home Depot is through Martin Lipton, of the Wachtell Lipton firm. According to a January 4, 2007 New York Times article (here), Lipton was not only hired to defend Nardelli and the Home Depot board against shareholder activist Relational Investors, Lipton did the same thing for Disney (and the NYSE, for that matter).

But the outcome of the Disney case should provide some some deterrence for shareholders itching to sue Home Depot's board over Nardelli's pay package and severance. Even though the shareholders took their case over Ovitz's severance all the way to the Delaware Supreme Court, the Disney board ultimately prevailed. (See my article commenting on the Disney case here.)

While Nardelli's pay package undeniably is eye-popping, there are some good reasons why CEOs deserve to be well paid. The first is that it is a tough job. According to one news report (here ), "Mr. Nardelli was an obsessive workaholic who rose at 4 a.m., logged 14-hour days and routinely worked through the weekend." The second reason is that it is a tough job to keep. According to a January 4, 2007 Chicago Tribune article entitled "Pressure's on for CEO's to Deliver--Now" (here), the average tenure of a CEO is 48 months. Shareholder activists may decry CEO's lavish severance benefits, but at one level high severance pay make perfect sense; CEO's obviously want to provide as much deterrence as possible against a board's quick hook, and also want protections against sudden unemployment. These comments should not be interpreted as a defense of excessive CEO compensation, but are merely intended to suggest that there may be more to CEO's severance arrangements than mere greed alone.

All of that said, there is one aspect of Nardelli's compensation history that I find undeniably troublesome. As noted in Gretchen Morgenstorn's article (here), during the middle of 2004, Home Depot "quietly changed the measurement it used to calculate long-term incentive pay for executives." Whereas the prior measure had used peer group comparisons of Home Depot's earning per share, the new measure was based solely on Home Depot's earning per share. Morgenstern's article doesn't mention it, but at the same time as this change was put in place, Home Depot was engaged in a massive share repurchase program. This obviously had the impact of driving up the company's reported earning per share - and management's bonus compensation. As I have previously noted (here), this practice of using share buybacks to boost EPS based executive compensation is the target of increasing criticism.

It is probably also worth noting that Home Depot and its board already face a number of lawsuits over other corporate governance and business practices. Shareholders have sued over the company's options grant practices, which reportedly involve options backdating during a nearly 20 year period from 1981 to 2000 (see news reports here). And Home Depot and its board also faces a 2006 securities class action lawsuit (here), based on whistleblower allegations, that the Company misrepresented its financial condition by fraudulently inflating charges to vendors for defective and/or damaged merchandise; and pressured suppliers who complained about excessive chargebacks by threatening to reduce orders of their products.

A Word to the Wise: Gretchen Morgenstern's description of Nardelli's ouster as a "surprising defenestration" has drawn a certain amount of humorous criticism (here), but The D & O Diary takes it as a point of pride that we previously described the ouster of corporate executives over options backdating as "defenestration" - and our prior post (here) helpfully included the word's etymology (with pictures!).

Latest Proof of How Cool the Internet Is: Want to see Nardelli's contract with Home Depot? Here it is.

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