Executive Bonus Pay Under Fire

It doesn't seem to matter that more than a thousand companies have restated earnings in recent years. Most of their executives are still holding on to bonus pay that it turns out they technically didn't earn.

Just when corporate boards are supposed to be increasing their oversight, they still aren't doing much to get executives to return undeserved compensation to company coffers. It looks like the only hope for that to change is if shareholders get in the way.

Why bonuses should be reclaimed should be easy to grasp. Executives were entitled to make additional compensation if their companies hit certain performance targets, but it has since been determined that they never met the required criteria. In fact, accounting errors spurred 1,156 earnings restatements between 2000 and 2003, according to Huron Consulting Group.

The problem is corporate leaders won't willingly give up the cash. And company boards, which should be putting pressure on their current and former executives to return that money, aren't moving on this matter.

That's putting the burden on shareholders. Slowly, they are making some inroads.

Consider what is going on at Computer Associates International Inc., which is embroiled in a major accounting scandal that led to the restatement of $2.2 billion in revenue, the indictment of several former executives and the departure of its former CEO Sanjay Kumar.

A shareholder proposal put forth by Amalgamated Bank's LongView Collective Investment Fund asked the software company's board to adopt a policy that forced senior management to return bonuses tied to financial statements that were later restated. The proposal singled out Kumar, who reportedly received a bonus of 80,000 shares of stock and $3.2 million in cash for 2000 -- one of the years that CA restated its earnings.

Even though 76 percent of CA's shareholders at a meeting last month voted against this measure, it thrust this issue into the spotlight. That will make it more difficult for CA's board to continue delaying its review of compensation paid to former executives.

"CA has been very slow at dealing with this problem ... we forced the issue toward the center stage,'' said Cornish Hitchcock, the legal counsel to labor-union affiliated Amalgamated Bank.

The good news it that shareholders have more ammunition in their arsenal to try to recoup bonuses.

They can file something called a derivative action, which is a lawsuit brought on behalf of the corporation. It often is used because companies, which are run by officers and directors, refuse to bring a lawsuit against one of their own. That's especially true today with board members hesitant to take action against company executives because they are concerned that they will also be held liable for the wrongdoing.

There is also recourse provided under the Sarbanes-Oxley Act, the corporate reform law passed two years ago by Congress in the wake of business scandals. Under section 304, CEOs and CFOs are required to return any bonus or profits from stock sales should their companies be involved in a financial restatement due to misconduct.

But as attorney Ken Henderson of the law firm Bryan Cave points out, the law is limited to only those two top officers and requires them to return the money even if they are not deemed responsible for the misconduct. It also does not specify whether it can be used retroactively, so it is questionable whether companies that now restate earnings for the years before the law went into effect can demand bonus money back.

Going forward, maybe corporate boards should take some preventive measures, such as including "clawback" provisions in employment contracts that require executives to return money if it is discovered that the metrics used to reward them were in fact based on fraudulent data.

"They could be very specific in saying to the executive 'We expect you to perform, and if you do, you will be rewarded. But if we have to restate, you aren't going to get to keep the money'," said Greg Taxin, CEO at Glass, Lewis & Co., which advises large shareholders on proxy matters.

And while most companies haven't gotten any bonus money back, it's worth pointing out that there are exceptions to the rule.

Shareholder pressure resulted in the energy holding company FPL Group Inc. announcing in August that it was recouping $22.25 million in bonuses awarded to eight executives as part of a failed merger agreement. Telecom-equipment maker Nortel Networks Corp., which is embroiled in a major accounting scandal, last month demanded that 10 former executives return $10 million in bonuses.

Hopefully, others will soon follow their lead.

By Rachel Beck