Press Room
U.S. Department of the Treasury
July 16, 2009 TG-218
FACT SHEET: Administrationfs Regulatory Reform Agenda
Moves Forward: New Independence for Compensation Committees
Today, as part of its push for comprehensive regulatory reform,
Treasury delivered draft legislation to Congress that would take steps to
ensure that compensation committees are independent in fact, not just in
name. Compensation committees are responsible for negotiating
executive compensation arrangements that protect long-term shareholder
value. Yet some compensation committees may not be fully independent
of management--for example, because the directors themselves stand to gain
from the decisions of executives. And even where the members of the
committee are independent of management, they may lack the tools to
bargain effectively with executives over complex compensation decisions or
may receive advice from consultants or legal counsel that face conflicts
of interest.
The Administration's proposed legislation takes three important
steps to ensure that compensation committees have the independence and
expert assistance they need to serve their important
role:
- First, the legislation requires that members of the
compensation committee meet exacting new standards for independence,
just as Sarbanes-Oxley did for members of audit committees.
-
Second, to ensure that committees are receiving
objective advice, the legislation requires that any compensation
consultants and legal counsel they hire be independent from
management.
-
Finally, the legislation requires that
compensation committees be given the authority and funding to hire
independent compensation consultants, outside counsel, and other
advisers who can help ensure that the committee bargains for pay
packages in the best interests of shareholders. At the same time, it
requires that if the committee decides not to use its own compensation
consultant, it explain that decision to
shareholders.
I. To ensure that compensation
committees setting executive pay are independent from management, the
Administration will require that compensation committee members meet
stronger standards for independence.
- Directors responsible for ensuring that executive pay is
in the best interest of shareholders should not have financial conflicts
with management. Some directors have financial
relationships with the company and its executives that may compromise
their independence. Studies have linked some of the most
controversial pay practices, such as option backdating, with the absence
of independent directors on the board. A study by Lucian Bebchuk
of Harvard, Yaniv Grinstein of Cornell and Urs Peyer of INSEAD, for
example, concluded that backdating is "correlated with . . . CEO
influence over internal decision-making processes," such as "the lack of
a majority of independent directors on the board."[i] Current law does
not prohibit these conflicted directors from sitting on the committees
that set executive pay at American companies.
-
Strict independence standards have curbed
abusive accounting practices. The
Administration's legislation would require that compensation committee
members meet strict independence standards--just as Sarbanes-Oxley did
for audit committees. The independence of audit committees has
been a critical factor in restoring investors' confidence in American
companies. For example, academic studies have linked increased
audit committee independence with the reduced incidence of the
most abusive accounting practices, such as the practice of "managing"
the company's earnings in order to satisfy financial analysts'
expectations.[ii]
-
While stock exchanges have set
independence standards, they may not go far enough to ensure shareholder
interests are protected: The major stock exchanges
now require that compensation committee members meet certain minimum
standards for independence, and studies have indicated that directors
who meet these minimum standards may be better guardians of shareholder
interests.[iii] But under New York Stock
Exchange standards, directors can still be considered independent even
if they receive up to $100,000 in outside compensation from the
company--in addition to directors' fees. And a director who owns
or operates a business receiving up to $1 million in revenue from the
company is considered independent under these standards.
II. The Administration will give
compensation committees the authority and funding to retain their own
compensation consultants and counsel to help them set compensation
packages that protect shareholder interests.
- Compensation committees can be at a disadvantage in
setting pay due to a lack of independent expertise.
Compensation committees may negotiate pay at a
significant disadvantage because executives use compensation consultants
to advocate for their views -- while the committee may not have access
to experts of their own. Under those circumstances, it is
unsurprising that academic studies have repeatedly established a link
between the use of compensation consultants and higher pay. A
study by Chris Armstrong and Christopher Ittner of the University of
Pennsylvania and David Larcker of Stanford found that the use of
consultants was most closely correlated with higherCEO pay most when
other shareholder protections are weakest, noting that "compensation
consultants provide a mechanism for CEOs of companies with weak
governance to extract and justify excess
pay."[iv]
-
Providing
compensation committees with access to independent consultants can level
the playing field in a way that protects shareholder interests.
Directors themselves have long recognized that
management's use of consultants without comparable access on the part of
compensation committees may compromise their ability to establish
compensation packages that protect shareholder interests. In 2003,
a blue-ribbon panel established by the National Association of Corporate
Directors recommended that compensation committees be given access to
their own consultants.[v] The Business Roundtable's own
"Executive Compensation Principles" make clear that "the compensation
committee should have independent, experienced expertise available to
provide advice on executive compensation arrangements and plans."[vi]
-
Just as compensation committees need
access to their own compensation consultants to protect shareholder
interests, committees should have the authority to hire legal counsel
and other advisers that report only to the
committee. For the same reasons that compensation
committees need the assistance of their own compensation consultant in
order to ensure that executive pay is designed to protect shareholder
interests, directors also need help from independent legal counsel when
bargaining with executives over compensation. Many companies have
already authorized their compensation committees to retain independent
counsel as they see fit, and giving the committee this authority has
long been considered a best practice among corporate governance
experts.[vii] In
2003, the well-respected group of top corporate lawyers and academics
that comprised the American Bar Association Task Force on Corporate
Responsibility concluded that compensation committees should have the
authority to hire independent counsel,[viii] while two prominent academics found
it to be a "necessary conclusion" that "the independent directors of a
public company have their own legal counsel."[ix]
III. The Administration will ensure that compensation
consultants and outside counsel that work for compensation committees are
independent from management.
- Compensation consultants sometimes also provide
non-compensation related services to companies and stand to profit when
executives agree to use their firms for those services.
In 2003, the Conference
Board's Commission on Public Trust and Private Enterprise, which
included both former CEOs and public officials such as John Snow,
concluded that major financial scandals were frequently accompanied by
the "excessively close relationship between executives and compensation
consultants who recommend to the board appropriate levels of executive
compensation."[x] In December 2007, the House
Committee on Oversight and Government Reform conducted a comprehensive
survey of conflicts among compensation consultants, noting further that
there appears to be a correlation between the retention of compensation
consultants with significant conflicts of interest and levels of CEO
pay. The report's key findings indicated that:
-
Compensation consultant conflicts of interests
are "pervasive," affecting at least 113 of the Fortune 250
companies;
-
The fees "earned by compensation consultants for
providing other services often far exceed those earned for advising on
executive compensation;"
-
Some compensation consultants received "over $10
million" in 2006 to provide non-compensation related services; according
to the committee, "[o]ne Fortune 250 company paid a compensation
consultant over $11 million for other services in 2006, over 70 times
more" than for compensation services; and
-
Over two-thirds of the Fortune 250 companies
that hired compensation consultants with conflicts of interest did not
disclose the conflicts in their SEC filings.[xi]
-
This legislation recognizes that compensation
consultants provide valuable services to companies,
while ensuring that advice given directly to
compensation committees is independent. While consulting firms
offer expertise to companies on emerging best practices across a wide
range of business contexts, an independent review of management's
proposals is also needed to ensure that compensation is structured in
order to maximize long-term shareholder value. As a result, this
legislation allows the SEC to strike the appropriate balance between the
need for companies to have the benefit of expertise and for compensation
committee members to receive independent advice.
[i] See,
e.g., Lucian Bebchuk, Yaniv Grinstein, and Urs Peyer, Lucky CEOs
and Lucky Directors (June 2009), at 3.
[ii] April
Klein, Audit Committees, Board of Director Characteristics, and
Earnings Management (October 2006).
[iii] Sanjai
Bhagat & Brian J. Bolton, Sarbanes-Oxley, Governance and
Performance (March 2009).
[iv] Chris
Armstrong et al., Economic Characteristics, Corporate Governance, and
the Influence of Compensation Consultants on Executive Pay Levels
(June 2008).
[v] NACD Blue
Ribbon Commission, Report on Executive Compensation and the Role of the
Compensation Committee (2003).
[vi] The
Business Roundtable, Executive Compensation Principles
(2007).
[viii] Report
of the American Bar Association Task Force on Corporate Responsibility
(March 2003).
[ix] Geoffrey
C. Hazard, Jr. & Edward B. Rock, A New Player in the Boardroom: The
Emergence of the Independent Directors' Counsel, 59 Bus.
Law. 1389 (August 2004).
[x] James
Fanto, Whistleblowing and the Public Director: Countering Corporate
Inner Circles 83 Or. L. Rev. 435 (2004) (quoting The
Conference Board, Commission on Public Trust and Private Enterprise 2
(January 2003)).
[xi]
Majority Staff of the United States House of Representatives Committee on
Oversight and Government Reform, Executive Pay: Conflicts of Interest
Among Compensation Consultants (December 2007).
REPORTS
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