SEC Adopts Final Mandatory Clawback Rules

Requires Clawback of Excess Incentive-Based Compensation Earned by Executive Officers During the Three Fiscal Years Preceding a Required Accounting Restatement; Broadens the Scope of Covered Restatements and Provides for Limited Impracticability Exceptions Sullivan & Cromwell LLP - October 31, 2022

On October 26, 2022, the SEC adopted a new rule and amendments to implement Section 954 of the Dodd-Frank Act.  The final rule directs national securities exchanges and associations to require policies mandating the recovery or “clawback” of excess incentive-based compensation earned by a current or former executive officer during the three fiscal years preceding a required accounting restatement, including to correct an error that would result in a material misstatement if the error were corrected in the current period or left uncorrected in the current period.  The excess compensation would be based on the amount the executive officer would have received had the incentive-based compensation been determined using the restated financials, but the final rule does not appear to require the listed company to reassess discretionary award determinations (either positive or negative).  The final rule applies to all listed companies without regard to the types of securities listed, other than certain listed funds, clearing agencies and unit investment trusts.  The SEC also adopted amendments requiring an issuer to disclose whether its financial statements reflect a correction to statements previously issued, its policy on the clawback of incentive-based compensation, whether any financial statement corrections are restatements that require analysis under such policy, and information about any actions taken pursuant to such policy.