US federal regulators re-propose joint rule on incentive-based compensation arrangements

Introduction

Six US federal financial regulators are seeking comment on a joint re-proposed rule implementing Section 956 of the Dodd-Frank Wall Street Reform and Consumer Protection Act relating to incentive-based compensation arrangements and practices at certain financial institutions.₍₁₎ In general, the proposed rule would prohibit covered institutions from awarding incentive-based compensation that is believed to encourage inappropriate risks and would impose mandatory deferral and clawback provisions. It would also require such institutions to disclose certain information regarding the structure of their incentive-based compensation arrangements to the applicable regulator.

The federal regulators that have re-proposed the rule are the Office of the Comptroller of the Currency, the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation, the Federal Housing Finance Agency, the National Credit Union Administration and the Securities and Exchange Commission (SEC).

In response to the view that flawed incentive-based compensation practices in the financial industry contributed to the 2008 financial crisis, Section 956 of the Dodd-Frank Act mandated that the regulators jointly establish rules or guidelines governing incentive-based compensation practices at certain financial institutions they regulate with assets of $1 billion or more.

The proposed rule revises a rule initially proposed by the regulators in April 2011,₍₂₎ which resulted in over 10,000 comments. The proposed rule is also intended to reflect certain developments since 2011 in compensation practices in the financial services industry.

Scope

The proposed rule would apply to any covered institution with average total consolidated assets greater than or equal to $1 billion that offers incentive-based compensation to covered persons. It would assign covered institutions to one of three levels based on average total consolidated assets, with more rigorous requirements applying to covered institutions with $50 billion or more of average total consolidated assets. 'Incentive-based compensation' means any variable compensation, fees or benefits that serve as an incentive or reward for performance. The proposed rule would supplement any existing rules and guidance adopted by the federal agencies relating to compensation, and would not be intended to affect the application of other federal compensation-related requirements.

For investment advisers that may consolidate assets of certain client vehicles, there is an important clarification in the proposed rule relating to the proposed method by which an investment adviser would determine its asset level. Specifically, as defined in the proposed rule, 'average total consolidated assets' for an investment adviser would mean the investment adviser's total assets (exclusive of non-proprietary assets) as shown on its balance sheet for the most recent fiscal year end. Furthermore, in a footnote to the release, the SEC clarified that "non-proprietary assets, such as client assets under management would not be included, regardless of whether they appear on an investment adviser's balance sheet. The SEC notes that this method is drawn directly from section 956 [of the Dodd-Frank Act]. See section 956(f) (referencing "assets" only)." References in this update to 'consolidated assets' should be construed accordingly.

Compliance date; grandfathered plans

The compliance date of the proposed rule would be no later than the beginning of the first calendar quarter that begins at least 540 days (approximately 18 months) after the final rule is published in the Federal Register. The proposed rule states that it would not apply to any incentive-based compensation plan with a performance period for measuring incentive-based compensation that began before the compliance date.

Requests for comment

The regulators are seeking comment on the proposed rule and have included dozens of specific requests for comment throughout the description of the proposed rule. Comments on the proposed rule are due by July 22 2016.

Practical guidance

The regulators included an 18-page appendix covering a hypothetical incentive-based compensation arrangement to illustrate how the proposed rule would work in practice. Several additional illustrative examples are provided throughout the description of the proposed rule.

Covered institutions and persons

Covered institutions

The financial institutions covered by the proposed rule would include the following types of entity with average total consolidated assets of at least $1 billion:

• banks, savings associations, bank holding companies and savings and loan holding companies;
• state and federally licensed US branches (insured or uninsured) and agencies of foreign banks;
• the US operations of foreign banks that are treated as bank holding companies (determined by reference to total consolidated US assets of the foreign bank);
• credit unions;
• broker-dealers and investment advisers;
• Fannie Mae and Freddie Mac; and
• any other financial institutions that the regulators jointly determine should be subject to the rule.

Levels of covered institutions

The proposed rule would assign covered institutions to one of three levels based on average total consolidated assets, with more rigorous requirements applying to the Level 1 and Level 2 covered institutions:

• Level 1 – greater than or equal to $250 billion in average total consolidated assets;
• Level 2 – greater than or equal to $50 billion and less than $250 billion in average total consolidated assets; and
• Level 3 – greater than or equal to $1 billion and less than $50 billion in average total consolidated assets.

A covered institution's level on the compliance date of the proposed rule would be determined based on average total consolidated assets as of the beginning of the first calendar quarter that begins after the final rule is published in the Federal Register. A covered institution that is a subsidiary of another covered institution with greater total consolidated assets would be defined to be the same level as its top-tier parent covered institution, other than with respect to SEC-regulated broker-dealers and investment advisers.

If an increase in a covered institution's average total consolidated assets would cause it to become a Level 1, 2 or 3 covered institution, it would be required to comply with any newly applicable requirements under the proposed rule no later than the first day of the first calendar quarter that begins at least 540 days after the date on which the covered institution becomes a Level 1, 2 or 3 covered institution. Incentive-based compensation plans with a performance period that begins after the compliance date just described would be subject to the rules that apply to the covered institution's new level. Upon a decrease in average total consolidated assets, a covered institution would remain subject to the provisions of the proposed rule that applied to it before the decrease until its average total consolidated assets fell below the applicable level (ie, $1 billion, $50 billion or $250 billion) for four consecutive quarters.

The proposed rule would give a regulator authority to impose the more stringent requirements of the proposed rule on a Level 3 covered institution with more than $10 billion and less than $50 billion in average total consolidated assets if the regulator determines that the complexity of its operations or compensation practices are consistent with those of a Level 1 or Level 2 covered institution.

Covered persons

Under the proposed rule, a 'covered person' would include any individual who is an executive officer, employee, director or principal shareholder who receives incentive-based compensation at a covered institution. The most significant limitations and prohibitions would apply to covered persons who are 'senior executive officers' and 'significant risk takers' because their positions or actions have the greatest potential to expose a covered institution to significant risk.

Senior executive officers

A 'senior executive officer' would be a covered person who holds the title or performs the function of one or more of the following positions at a covered institution for any period in the relevant performance period:

• president;
• chief executive officer;
• executive chairman;
• chief operating officer;
• chief financial officer;
• chief investment officer;
• chief legal officer;
• chief lending officer;
• chief risk officer;
• chief compliance officer;
• chief audit executive;
• chief credit officer;
• chief accounting officer; or
• the head of a major business line or control function.

Significant risk takers

Under the proposed rule, a covered person at a Level 1 or Level 2 covered institution, other than a senior executive officer, would be a 'significant risk taker' if that person:

• received annual base salary and was awarded incentive-based compensation for the last calendar year that ended at least 180 days before t-he beginning of the performance period of which at least one-third consisted of incentive-based compensation; and
• satisfied either the relative compensation test or the exposure test described below.

In addition, the relevant regulator would be able to designate any covered person at a covered institution, other than a senior executive officer, as a significant risk taker if that person has the ability to expose the covered institution to risks that could lead to material financial loss in relation to the institution's size, capital or overall risk tolerance.

Relative compensation test

The relative compensation test would depend on the amounts of annual base salary and incentive-based compensation of a covered person relative to other covered persons working for the covered institution and its affiliated covered institutions. This test would be met if the covered person is among the top 5% (for Level 1 covered institutions) or top 2% (for Level 2 institutions) of the most highly compensated covered persons (excluding senior executive officers) in the entire consolidated organisation, including affiliated covered institutions.

Exposure test

The exposure test would be satisfied if the covered person has authority to commit or expose 0.5% or more of the capital of the covered institution or, in some cases, an affiliated covered institution. It would relate to the covered person's authority to cause the covered institution to be subject to credit risk or market risk, but not other types of risk that are more difficult to quantify, such as compliance risk.

Requirements and prohibitions applicable to all covered institutions

Prohibition on arrangements that encourage inappropriate risks

The proposed rule would prohibit all covered institutions from establishing or maintaining incentive-based compensation arrangements that encourage inappropriate risks by providing covered persons with 'excessive' compensation that could lead to material financial loss to the covered institution.

Excessive compensation

The proposed rule would prohibit all covered institutions from granting excessive incentive-based compensation to any covered person that exposes the institutions to inappropriate risks. The standards for determining whether incentive-based compensation is excessive would be comparable to those developed under Section 39 of the Federal Deposit Insurance Act, which provides that compensation is excessive if the amounts paid are unreasonable or disproportionate to, among other things, the amount, nature, quality and scope of services performed by the covered person. Under the proposed rule, the regulators would consider all relevant factors when determining whether incentive-based compensation is excessive, including the following:

• the combined value of all compensation, fees or benefits provided to a covered person;
• the compensation history of the covered person and other persons with comparable expertise;
• the financial condition of the covered institution;
• compensation practices at comparable institutions, based on such factors as asset size, geographic location and the complexity of the covered institution's operations and assets;
• with respect to post-employment benefits, the projected total cost and benefit to the covered institution; and
• any connection between the covered person and any fraud, breach of trust or fiduciary duty or insider abuse at the covered institution.

The review of whether a compensation arrangement is excessive under this standard would be independent of the review described below as to whether the arrangement would contribute to the risk of material financial loss at the covered institution.

Material financial loss

The proposed rule would prohibit covered institutions from establishing or maintaining incentive-based compensation arrangements that encourage inappropriate risks by the covered institutions that could lead to material financial loss. Specifically, the proposed rule provides that covered institutions would be prohibited from providing incentive-based compensation to covered persons unless the arrangement:

• appropriately balances risk and financial rewards;
• is compatible with effective risk management and controls; and
• is supported by effective governance, including active oversight by the board of directors (or a committee thereof).

Furthermore, an incentive-based compensation arrangement would not be considered to appropriately balance risk and reward unless it:

• includes both financial and non-financial measures of performance;
• is designed to allow non-financial measures of performance to override financial measures of performance, when appropriate; and
• is subject to adjustment to reflect actual losses, inappropriate risks taken, compliance deficiencies or other measures or aspects of financial and non-financial compliance.

Use of non-financial measures of performance

Covered institutions that are publicly traded will likely want to ensure that non-financial goals do not cause compensation payable to their covered employees under Section 162(m) of the Internal Revenue Code (generally those reported in the company's annual proxy statement, other than the principal financial officer) to be non-deductible for federal income tax purposes under Section 162(m). This can be done by using the non-financial goals to reduce, through the exercise of negative discretion, the amount otherwise earned upon the achievement of the financial goals.

The regulators emphasise the importance of strong risk management and internal controls, noting that employees may otherwise seek to evade or weaken a covered institution's processes to achieve balance in its incentive-based compensation structures. The regulators encourage covered institutions to consider how the following features of an incentive-based compensation arrangement work together when developing arrangements that appropriately balance risk and reward:

• how performance measures are combined;
• whether performance measures take into account both current and future risks;
• which criteria govern the use of risk-based adjustments before the awarding and vesting of incentive-based compensation; and
• what form incentive-based compensation takes (ie, equity based or cash based).

Some examples of features that could lead to material financial loss include the following:

• Performance measures may be closely tied to short-term revenue or profit of business generated by a covered person, without any adjustments for the longer-term risks associated with the business generated.
• If there is no mechanism for factoring risk outcomes over a longer period of time into compensation decisions, traders who have incentive-based compensation plans with performance periods that end at the end of the calendar year could have an incentive to take large risks towards the end of the calendar year either to make up for underperformance earlier in the performance period or to maximise their year-end profits.
• Performance measures may be poorly designed or be manipulated inappropriately by the covered persons receiving incentive-based compensation.

Required approval of incentive-based compensation of senior executive officers

Under the proposed rule, the board of directors (or committee thereof) of each covered institution would be required to:

• conduct oversight of the covered institution's incentive-based compensation programme;
• approve incentive-based compensation arrangements for senior executive officers, including amounts of awards and, at the time of vesting, pay-outs under such arrangements; and
• approve material exceptions or adjustments to incentive-based compensation policies or arrangements for senior executive officers.

Disclosure and recordkeeping requirements

The proposed rule would require all covered institutions to create annually, and maintain for at least seven years, records that document the structure of incentive-based compensation arrangements and demonstrate compliance with the proposed rule. At a minimum, the records must include:

• copies of all incentive-based compensation plans;
• a record of who is subject to each plan; and
• a description of how the incentive-based compensation programme is compatible with effective risk management and controls.

Covered institutions must provide these records to the appropriate federal regulators at their request; but, unlike the 2011 proposed rule, the rule does not require covered institutions to file annual reports relating to incentive-based compensation. The proposed rule indicates that the regulators would consider the information non-public and expect to maintain the confidentiality of the information to the extent permitted by law. If a covered institution were to provide information to a regulator pursuant to the proposed rule, according to the rule, the covered institution should request confidential treatment by such regulator.

Anti-evasion provision

The proposed rule would prohibit covered institutions from doing indirectly, or through or by any other person, anything that would be unlawful for the covered institution to do directly under the proposed rule.

Additional requirements and prohibitions

Enhanced disclosure and recordkeeping requirements

In addition to the disclosure and recordkeeping requirements applicable to all covered institutions, the proposed rule would require all Level 1 and Level 2 covered institutions to create annually, and maintain for at least seven years, records that document the structure of incentive-based compensation arrangements and demonstrate compliance with the proposed rule, including:

• the covered institution's senior executive officers and significant risk takers, listed by legal entity, job function, hierarchy and line of business;
• the incentive-based compensation arrangements for senior executive officers and significant risk takers, including information on the percentage of incentive-based compensation deferred and form of award;
• any forfeiture and downward adjustment or clawback reviews and decisions for senior executive officers and significant risk takers; and
• any material changes to the covered institution's incentive-based compensation arrangements and policies.

Level 1 and Level 2 covered institutions would be required:

• to create and maintain records in a manner that would allow for an independent audit of incentive-based compensation arrangements, policies and procedures; and
• to provide the records to the appropriate federal regulator upon request.

Deferral, forfeiture and downward adjustment of incentive-based compensation

Under the proposed rule, an incentive-based compensation arrangement for a senior executive officer or a significant risk taker at a Level 1 or Level 2 covered institution would not be considered to appropriately balance risk and reward unless it satisfies the deferred vesting, forfeiture and downward adjustment requirements set forth in the proposed rule.

Mandatory deferral of incentive-based compensation

Relevant definitions include the following:

• 'Deferral' – the delay of vesting (not merely the timing of payment) of incentive-based compensation beyond the date at the end of the performance period on which the incentive-based compensation is awarded.
• 'Deferral period' – the period between the date on which a performance period ends and the last date on which the incentive-based compensation awarded for such performance period vests.
• 'Long-term incentive plan' (LTIP) – a plan to provide incentive-based compensation that is based on a performance period of at least three years.
• 'Qualifying incentive-based compensation' – incentive-based compensation that is awarded to a senior executive officer or significant risk-taker for a performance period of less than three years.

A Level 1 covered institution would be required to defer at least 60% of a senior executive officer's qualifying incentive-based compensation and 50% of a significant risk taker's qualifying incentive-based compensation for at least four years. In addition, a Level 1 covered institution would be required to defer, for at least two years after the end of the related performance period, at least 60% of a senior executive officer's incentive-based compensation awarded under an LTIP and 50% of a significant risk taker's incentive-based compensation awarded under an LTIP.

A Level 2 covered institution would be required to defer at least 50% of a senior executive officer's qualifying incentive-based compensation and 40% of a significant risk taker's qualifying incentive-based compensation for at least three years. Furthermore, a Level 2 covered institution would be required to defer, for at least one year after the end of the related performance period, at least 50% of a senior executive officer's incentive-based compensation awarded under an LTIP and 40% of a significant risk taker's incentive-based compensation awarded under an LTIP.

Click here to view table.

Under the proposed rule, deferred incentive-based compensation of senior executive officers and significant risk takers at Level 1 and Level 2 covered institutions would also have to meet the following requirements:

• Acceleration of vesting of deferred incentive-based compensation would generally be permitted only in the case of death or disability of the covered person (but not other events, such as change in control).
• Deferred amounts may not vest more quickly than on a pro rata annual basis beginning on the first anniversary of the end of the performance period (eg, one-third in each year of a three-year deferral period).
• The percentage of incentive-based compensation awarded that would be required to be deferred would apply separately to incentive-based compensation awarded under an LTIP and to qualifying incentive-based compensation, although all qualifying incentive-based compensation arrangements (but not LTIPs) may be aggregated for this purpose, allowing the covered institution to choose which qualifying incentive-based compensation arrangement or combination of arrangements will be subject to deferral.
• Unvested deferred amounts may not be increased during the deferral period.
• Substantial portions (without a percentage specified in the proposed rule) of deferred incentive-based compensation must generally be paid in the form of both equity or equity-like instruments and deferred cash throughout the deferral period, although equity or equity-like instruments may nonetheless be settled in cash.
• If a senior executive officer or significant risk taker receives incentive-based compensation for a performance period in the form of options, the total amount of such options used to meet the minimum required deferred compensation threshold may not exceed 15% of the amount of total incentive-based compensation awarded to the person for that performance period.

Forfeiture and downward adjustment

The proposed rule would require a Level 1 or Level 2 covered institution to consider reducing some or all of the incentive-based compensation of a senior executive officer or significant risk taker when the covered institution becomes aware of inappropriate risk taking or other behaviour that could lead to a material financial loss.

Relevant definitions include the following:

• 'Forfeiture' is a reduction of the amount of deferred incentive-based compensation awarded to a covered person that has not vested.
• 'Downward adjustment' is a reduction of the amount of a covered person's incentive-based compensation not yet awarded for any performance period that has already begun.

The proposed rule would require a Level 1 or Level 2 covered institution to make subject to forfeiture all unvested deferred incentive-based compensation of any senior executive officer or significant risk taker, including unvested deferred amounts awarded under LTIPs. This forfeiture requirement would apply to all unvested, deferred incentive-based compensation for those persons, regardless of whether the deferral was required by the proposed rule.

Furthermore, the proposed rule would require Level 1 and Level 2 covered institutions to adjust deferred compensation to reflect actual losses incurred or performance measures realised by the institution during the deferral period. Specifically, a Level 1 or Level 2 covered institution would be required to make subject to downward adjustment all incentive-based compensation amounts not yet awarded to any senior executive officer or significant risk taker for the current performance period, including amounts payable under LTIPs.

A Level 1 or Level 2 covered institution would be required to consider forfeiture or downward adjustment of incentive-based compensation in the following circumstances (in case of additional triggers that the covered institution may define based on conduct or poor performance):

• poor financial performance attributable to a significant deviation from the covered institution's risk parameters set forth in the covered institution's policies and procedures;
• inappropriate risk taking, regardless of the impact on financial performance;
• material risk management or control failures;
• non-compliance with statutory, regulatory or supervisory standards resulting in enforcement or legal action brought by a federal or state regulator or agency, or a requirement that the covered institution report a restatement of a financial statement to correct a material error; and
• other aspects of conduct or poor performance as defined by the covered institution.

The proposed rule sets forth six minimum factors that would have to be considered when determining the amount of incentive-based compensation to be reduced, including:

• the covered person's level of participation in the triggering circumstances and their financial and reputational impact;
• the covered person's intent to operate outside of the applicable risk management policies; and
• any preventative actions that the covered person could have taken.

Any forfeiture or downward adjustment would have to be administered under a formal documented policy and procedure.

Clawback of incentive-based compensation

Unlike the 2011 proposed rule, which did not contemplate a clawback provision, the proposed rule would require Level 1 and Level 2 covered institutions to include clawback provisions in the incentive-based compensation arrangements for senior executive officers and significant risk takers that would enable the institutions to recover vested incentive-based compensation from such persons if certain events occur. At a minimum, such provisions would have to allow the covered institution to recover incentive-based compensation from a current or former senior executive officer or significant risk taker for seven years following the date on which such compensation vests, if the covered institution determines that the person engaged in:

• misconduct that resulted in significant financial or reputational harm to the covered institution;
• fraud; or
• intentional misrepresentation of information used to determine the person's incentive-based compensation.

When combined with the applicable performance period and required deferral period, in some cases the clawback requirement would cause incentive-based compensation to be at risk for at least 12 years from the beginning of the performance period.

Additional prohibitions

The proposed rule contains several additional prohibitions applicable to Level 1 and Level 2 covered institutions not contemplated by the 2011 proposed rule as described below.

Hedging prohibition

The proposed rule would prohibit a Level 1 and Level 2 covered institution from purchasing hedging or similar instruments on behalf of a covered person to hedge or offset any decrease in the person's incentive-based compensation.

Maximum incentive-based compensation opportunity (leverage)

The proposed rule would limit maximum pay-outs of incentive-based compensation under each applicable plan to 125% of the pre-established target amount for senior executive officers and 150% of the pre-established target amount for significant risk takers.

Relative performance measures and volume-driven incentive-based compensation

The proposed rule would prohibit a Level 1 and Level 2 covered institution from using incentive-based compensation performance measures based solely on industry peer performance comparisons (eg, a metric comparing a covered institution's performance to peer institutions or an industry average). Relative performance measures may be used only in combination with absolute performance measures (eg, absolute total shareholder return rather than relative total shareholder return compared to the covered institution's peer group). The proposed rule would also prohibit Level 1 and Level 2 covered institutions from using transaction or revenue volume as a sole performance measure goal without regard to transaction quality or compliance with risk management requirements.

Risk management and control

The proposed rule would require Level 1 and Level 2 covered institutions to have a risk management and control framework for their incentive-based compensation programmes that:

• is independent of any lines of business;
• includes an independent compliance programme that provides for internal controls, testing, monitoring and training with written policies and procedures; and
• is commensurate with the size and complexity of the covered institution's operations.

The proposed rule would also require Level 1 and Level 2 covered institutions to:

• provide persons in control functions with appropriate authority to influence the risk taking of the business areas that they monitor and ensure that covered persons engaged in control functions are compensated independently of the performance of the business areas that they monitor; and
• provide for independent monitoring of:
  • incentive-based compensation plans, to identify whether the plans appropriately balance risk and reward;
  • events related to forfeiture and downward adjustment and decisions of forfeiture and downward adjustment reviews, to determine consistency with the proposed rules; and
  • compliance of the incentive-based compensation programme with the covered institution's policies and procedures.

To be considered independent under the proposed rule, the person at the covered institution responsible for monitoring the areas described above generally should have a reporting line to senior management or the covered institution's board of directors that is separate from the covered persons whom the person is responsible for monitoring.

Governance

The proposed rule would require each Level 1 or Level 2 covered institution to establish a compensation committee composed solely of directors who are not senior executive officers to assist the board of directors in carrying out its responsibilities under the proposed rule. The compensation committee would be required to obtain input from the covered institution's risk and audit committees, or groups performing similar functions, and risk management function on the effectiveness of risk measures and adjustments used to balance incentive-based compensation arrangements.

Management would be required to submit to the compensation committee, at least annually, a written assessment of the effectiveness of the covered institution's incentive-based compensation programme and related compliance and control processes in providing risk-taking incentives that are consistent with the risk profile of the covered institution. The compensation committee would be required to obtain, at least annually, a written assessment on the same subject from the internal audit or risk management function of the covered institution developed independently of management's assessment.

A compensation committee that is already in existence at a covered institution may be used for this purpose, although modifications to its committee charter may be necessary or advisable.

Policies and procedures

The proposed rule would require all Level 1 and Level 2 covered institutions to develop and maintain policies and procedures that, among other requirements:

• are consistent with the requirements and prohibitions of the proposed rule;
• specify the substantive and procedural criteria for forfeiture and clawback, including the process for determining the amount of incentive-based compensation to be clawed back;
• document final forfeiture, downward adjustment and clawback decisions;
• specify the substantive and procedural criteria for the acceleration of payments of deferred incentive-based compensation to a covered person (eg, upon death or disability);
• identify and describe the role of any employees, committees or groups authorised to make incentive-based compensation decisions, including when discretion is authorised;
• describe how discretion is expected to be exercised to appropriately balance risk and reward;
• require that the covered institution maintain documentation of the establishment, implementation, modification and monitoring of incentive-based compensation arrangements;
• describe how incentive-based compensation arrangements will be monitored;
• specify the substantive and procedural requirements of the independent compliance programme; and
• ensure appropriate roles for risk management, risk oversight and other control personnel in the covered institution's processes for designing incentive-based compensation arrangements and determining awards, deferral amounts, deferral periods, forfeiture, downward adjustment, clawback and vesting, as well as assessing the effectiveness of incentive-based compensation arrangements in restraining inappropriate risk taking.

Next steps

The public comment period for the joint proposed rule will end on July 22 2016. The compliance date of the proposed rule would be no later than the beginning of the first calendar quarter that begins at least 540 days (approximately 18 months) after the final rule is published in the Federal Register.

Even though the proposed rule will not be effective for some time, financial institutions that would be subject to the rule should review their incentive-based compensation arrangements and policies and procedures in light of the proposed rule and consider what changes and actions will be required. It is possible that some of the compensation practices developed by financial institutions to comply with the final rule could spread to other large public companies outside of the financial services industry or be considered by institutional shareholders or their advisers, such as Institutional Shareholder Services, to be preferred compensation practices.

For further information on this topic please contact William S Eckland at Sidley Austin LLP's Washington DC office by telephone (+1 202 736 8000) or email ([email protected]). Alternatively, contact Matthew E Johnson, John P Kelsh or Corey Perry at Sidley Austin LLP's Chicago office by telephone (+1 312 853 7000) or email ([email protected], [email protected] or [email protected]). The Sidley Austin LLP website can be accessed at www.sidley.com.

Endnotes

(1) The final text of the SEC's version of the re-proposed rule can be accessed here.

(2) The rule as previously proposed in 2011 is described here.

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