SEC Adopts Final Dodd-Frank Act Clawback Rules: An A-to-Z Explanation

As required by the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, on October 26, 2022, the Securities and Exchange Commission adopted final rules directing the national securities exchanges and national securities associations that list securities to establish clawback listing standards. These clawback listing standards will require each listed issuer to adopt a written compensation recovery (clawback) policy providing for the recovery, in the event of a required accounting restatement, of incentive-based compensation received by current or former executive officers (generally Section 16 officers) that is based on erroneously reported financial information. The final rules also require disclosure regarding the clawback policy, including filing it as an exhibit to the listed issuer's annual report and providing (where applicable) certain disclosure regarding the operation of the clawback policy.  

Importantly, the SEC’s final rules do not permit listed issuers to condition clawback in any way on the fault or culpability of an affected executive officer regarding the accounting restatement, to implement de minimis thresholds for clawbacks or recoverable amounts of erroneously awarded incentive compensation, or allow for boards of directors to exercise broad discretion in connection with determining whether certain compensation should be clawed back in light of the circumstances.

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