Blog: What’s Happening With Those SEC Proposals For Dodd-Frank Clawbacks And Disclosure Of Pay For Performance And Hedging? Apparently, Not Much.

by Cooley LLP

As noted in this article from Law360, the SEC’s latest Regulatory Flexibility Agenda, which identifies those regs that the SEC intends to propose or adopt in the coming year— and those deferred for a later time—has now been posted.  The Agenda shifts to the category of long-term actions most of the Dodd-Frank compensation-related items that had previously been on the short-term agenda—not really a big surprise given the deregulatory bent of the new administration.  Keep in mind, however, that the Agenda has no binding effect and, in this case, could be even less prophetic than usual; the Preamble to the SEC’s Agenda indicates that it reflects “only the priorities of the Acting Chairman [Michael Piwowar], and [does] not necessarily reflect the view and priorities of any individual Commissioner.”  It also indicates that information in the Agenda was accurate as of March 29, 2017.  As a result, it does not necessarily reflect the views of the new SEC Chair, Jay Clayton, who was not confirmed in that post until May.

SideBar: Notably, there’s no mention anywhere on the Agenda of revisions to the Dodd-Frank pay-ratio rules.  You will recall that, in February, Piwowar issued a statement requesting “public input on any unexpected challenges that issuers have experienced as they prepare for compliance with the rule and whether relief is needed” and directing the Corp Fin staff to revisit the pay-ratio disclosure rules based on these comments “to determine as promptly as possible whether additional guidance or relief may be appropriate.” (See this PubCo post.) That was followed a few days later by a reminder from Acting Corp Fin Director Shelley Parratt that, notwithstanding the request for public comment and all of the Executive Orders aimed at deregulation, the pay-ratio disclosure rules continued in effect. (See this PubCo post.) However, it’s been radio silence from Corp Fin since then, and, given that the first disclosure for calendar-year companies will be in the 2018 proxy statement, companies have lately been gearing up for all of the work involved in the analysis and disclosure.

More specifically, now relegated to the back burner are regulations related to pay for performance (see this Cooley Alert), listing standards related to clawbacks for erroneously awarded comp (see this PubCo post), hedging disclosure (see this PubCo post), incentive compensation arrangements at certain financial institutions and disclosure of payments by resource extraction issuers. (The resource extraction rules, you may recall, were repealed in February under the Congressional Review Act, which means that, in the absence of repeal of the original Dodd-Frank mandate, the SEC has a year to issue a new rule on the same topic because the regulation was mandated by Congressional statute. See this PubCo post.)  Also deferred to the long-term column are proposals regarding the use of universal proxies (see this PubCo post), as well as a topic in which former Chair Mary Jo White expressed a particular interest, board diversity (see this PubCo post).

Additional matters deferred to the long-term Agenda are some rule and form amendments proposed in 2013 to enhance the SEC’s ability to evaluate the development of market practices in offerings under Rule 506 of Regulation D and address concerns that may arise in connection with general solicitation under new paragraph (c) of Rule 506, as well as potential rules designed to address the conflicts of interest associated with the issuer-pay business model used by credit-rating agencies.

On the Agenda for more near-term action are the proposal related to inline XBRL (see this PubCo post), the request for comment regarding the financial disclosure requirements in Reg S-X that obligate public companies to provide financial information about entities other than the reporting company (see this PubCo post), the concept release related to modernization of the Reg S-K business and financial disclosure requirements (see this PubCo post), the concept release regarding audit committee disclosures (see this PubCo post), and implementation of the FAST Act report recommendations (see this PubCo post).  Also on the 12-month Agenda are adoption of the Reg S-K disclosure update and simplification amendments (see this PubCo post), and final rules on simplification of disclosure requirements for EGCs and forward incorporation on Form S-1 for smaller reporting companies (see this PubCo post), 10-K summaries (see this PubCo post), and changes to the definition of smaller reporting company (see this PubCo post).

The Agenda also indicates that the SEC is considering reproposing rule amendments implementing section 951 of Dodd-Frank related to the requirement that institutional investment managers report how they voted on say on pay, say on frequency and say on golden parachutes.  These rules were previously proposed in 2010.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Cooley LLP | Attorney Advertising

Written by:

Cooley LLP

Cooley LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.