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How the financial crisis influenced the Wells Fargo clawbacks

Source: Reuters

Wells Fargo’s (WFC) historic $41 million clawback of equity compensation from CEO John Stumpf finally gave a measure of satisfaction to a public tired of banking executives getting paid big amidst incompetence and scandal.

Put into perspective however, Wells Fargo’s crimes of fraudulently opening 2 million accounts pales in comparison to the mortgage misdeeds that precipitated the 2008 financial crisis. So why did Stumpf get burned for that while other banking executives got away with far more? Why haven’t we seen big clawbacks in the past?

According to Susanna Gallani, a professor at the Harvard Business School, clawback provisions have been around since the 1990s, but only adopted on a voluntary basis. “However, they were rarely enforced,” she says.

Regulators started taking clawbacks seriously in 2002, when Congress passed the Sarbanes-Oxley Act (SOX) putting in stricter requirements for corporate governance and accountability. This allowed the SEC to claw back CEO and CFO compensation due to accounting inaccuracies if they were bad enough to trigger a restatement. “However many companies decided to adopt more stringent clawback provisions that extended the scope of the policy to other actions,” she says. “Or other executives beyond the CEO and CFO.”

Still, clawbacks weren’t really enforced very much under SOX. “The SEC did not seem to have the bandwidth to sustain these actions,” says Gallani. “Second, the wording utilized in the rule is not particularly clear. ‘Misconduct’ and ‘material misstatement’ are terms open to interpretation.”

Everything changed after the financial crisis, from public perception to how the government regulated banks and public companies. Among the many stipulations of the Dodd-Frank Act of 2010, Section 954 specifically mandated clawback provisions for all listed companies.

Setting the bar for clawbacks lower than SOX, Dodd-Frank’s Section 954 removed the requirement of misconduct to focus on the financial misstatement, independently of misconduct, according to Gallani. It also extended the distance the claw can reach back from 12 months to three years and shifted the responsibility for enforcement to the boards from the SEC. Still, there have hardly been many clawbacks despite the act. In fact, Section 954 hasn’t even been adopted formally yet by the SEC. (The proposed rules have been released for comments in 2015.) The closest thing the banking industry has seen was J.P. Morgan (JPM) cutting CEO James Dimon’s pay in half to $11.5 million a year after the London Whale scandal, the Wall Street Journal noted this week. The paycut Dimon suffered, however, was not a clawback.

For Wells Fargo, it wasn’t any official, regulator-mandated provisions that took John Stumpf’s paychecks—although perhaps this case will influence the SEC’s final rules. “The enforcement of clawback provisions by Wells Fargo is based on their internal policy, disclosed in their proxy statement,” says Gallani. “[It] was not triggered by the SEC or the National Credit Union Administration in any way—at least based on what we know from official sources.”  

Despite not being mandated by post-crisis reform, Wells Fargo’s internal policy of voluntarily adopting clawback provisions stemmed directly from the public outrage seen during the crisis, with so many executives fluttering in golden parachutes after mishandling the public’s money and trust. Other banks have done similarly: For example, Bank of America (BAC) and Goldman Sachs (GS) adopted similar clawback provisions in 2015.

Unfortunately for the bank, it’s very possible it will get lumped in with the other banks that let its executives get away with murder, so to speak. Although it did implement the clawback, the move was probably too little too late, after the massive public relations damage had already been done. Even the biggest of clawbacks won’t undo the damage of a viral, righteous grilling from Sen. Elizabeth Warren.

Ethan Wolff-Mann is a writer at Yahoo Finance focusing on consumerism, tech, and personal finance. Follow him on Twitter @ewolffmann.

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