Executive Pay and Loyalty

New: see ERISAcloud.com for retirement and welfare plan updates, 
        from a compliance, litigation, and risk management perspective

New Developments >>> revised 2013.Apr.12

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2014.Apr.06 "Uncertainty of Apparent Right Critical In Clawback Deduction, IRS Counsel Says" - This BloombergBNA article reports the IRS view as follows, quoting here from the article . . . continued at Clawback Tax and Accounting Rules.

2014.Mar.27  Nasdaq Deadline Looms for Compensation Committees . . . 30 Days after 2014 Annual Meeting
Nasdaq's independence and charter requirements that took effect in 2013 for compensation committees require one more step for listed companies: their filing of a certification of compliance with Nasdaq. The deadline is generally 30 days after a company's 2014 annual meeting; provided that . . .  see Compensation Committee Homepage.

2014.Mar.26  German CEO Pay Mirrors Corporate Performance; Trails Global Averages
TowersWatson reports that companies listed on the German DAX had essentially flat corporate earnings from 2012 to 2013, with CEO compensation also being flat. This pay-for-performance alignment contrasts with wide differentiation in the global markets. As reported by TowersWatson, the CEOs of Germany's largest companies made about 15% less than the E.U. average - and less than 50% of the U.S. companies comprising the Dow Jones Industrial Average. See Germany.

2014.Mar.14  Executive Severance Challenged as Corporate Waste by Yahoo!'s Board
This Law360 article describes the filing of shareholder derivative litigation in Delaware Chancery Court. The complaint alleges that $127 million of severance paid to Yahoo!'s former COO was "egregious and wasteful."  The case is 
The David R. & Lynn B. Hughes Trust of June 25, 1987 v. de Castro et al. For similar litigation, see Excessive Severance Cases.

2014.Mar.13  DE Magistrate: Dismiss Code §162(m) and Related 14A Litigation vs ConocoPhillips - and vs Allergan
In a DE federal district court action dating back to 2011, the magistrate judge has recommended dismissal of causes of action "based entirely on executive compensation under the 2011 Plan and the alleged non-tax-deductibility of those executive compensation awards" by ConocoPhillips. A recommendation was issued the next day for dismissal of similar 162(m) litigation against Allergan due to . . .  see "ConocoPhillips" and "Allergan" in the table of cases at Code §162(m) Litigation.

2014.Feb.26  Duration of CEO Employment Agreements: Study of Impact 
Do longer employment agreements provide CEOs with greater security, thereby making them more inclined to take business risks? The answer is yes, based on empirical support in this academic study.  See generally: Employment Agreements.

Other Pages updated in 4th Quarter of 2013:
  • Forfeitures for Disloyalty - 5th Circuit enforces forfeiture of SERP due to executive's violation of non-compete.
  • New York - new noncompete decision refuses enforcement due to termination without cause.
  • Tax Exempt Orgs - revised Form 990 instructions require disclosure of pay for contract CFOS serving through outside management corps.
  • Tax Code §162(m) - negative discretion need not be shareholder approved.
  • Tax Code §409A - update for  plan termination and court decision imposing violations.
>>> See 
Past Alerts.

Topical Index

Loyalty Duties:


By Contract (e.g. non-competes)

By Geographic Area

By Law

Enforcement of Loyalty:

  Executive Compensation:



Say on Pay

Georgetown Law Class Spring 2014
"Executive Compensation - Governance, Securities, and Tax"

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Mark Poerio