To Claw or Not to Claw: That’s a Complicated Question

Wells FargoLawmakers are clamoring for Wells Fargo & Co. to claw back tens of millions in compensation from Carrie Tolstedt, the former executive at the center of the bank’s unauthorized account scandal.

Earlier this month, Wells Fargo agreed to pay $185 million in penalties to resolve allegations that employees opened millions of unauthorized accounts. At a Sept. 20 Senate hearing, Wells Fargo CEO John Stumpf said the bank’s human resources board committee is “actively” reviewing the clawback question.

The issue is not as simple as lawmakers would like. Wells Fargo, like most financial institutions and large companies, has policies on when it can require executives to return compensation. Wells Fargo’s policy, like that of most other companies, is triggered by a financial restatement.

Most companies very rarely use such policies. Over the last two years, only 10 percent of the respondents clawed back compensation that already had been paid, according to an April poll by compensation consultant Mercer.

The big stymying point here is the need for a restatement. Wells Fargo made $2.4 million in fees from the unauthorized accounts. The bank generated $86 billion in revenue last year, so it is unlikely to restate its financials because of the wrongdoing.

The bank does have another policy where it can recoup stock awards that haven’t yet vested if it suffers reputational harm because of misconduct. Under that policy, Wells Fargo can claw back about $19 million from Tolstedt, far less than what lawmakers want.

Sen. Elizabeth Warren (D-Mass.) has called on the Securities and Exchange Commission and the Justice Department to investigate Stumpf.

Currently, the SEC can require clawbacks of compensation and bonuses under 2002 Sarbanes-Oxley Act Section 304. But the provision only applies to the chief executive or chief financial officers, and only if there is a restatement resulting from “material noncompliance” with, or misconduct relating to, financial reporting requirements.

The commission, as part of its Dodd-Frank Act implementation, in July 2015 proposed a rule in which the national securities exchanges such as the New York Stock Exchange would establish clawback standards for publicly held companies. That proposal, not yet finalized, differs from SOX clawback requirements in many material respects.

For example, the proposal would expand the category of employees covered by most existing corporate policies, and eliminate the substantial discretion accorded to many corporate boards in deciding whether to implement clawbacks and how much, and whom, should be covered by the policy. However, the SEC proposal, like its SOX counterpart, would only be triggered by a financial restatement.

In any case, the House Financial Services Committee has announced that it too will hold a hearing on Wells Fargo. That hearing, tentatively scheduled on Sept. 29, may be even tougher on Stumpf. Stay tuned.