Roger Yu

USA TODAY

In seeking to defuse the firestorm over its sham accounts, Wells Fargo & Co.’s board turned to an old, but obscure gambit — getting its top leader to pay up. It's a measure we could see companies take more often.

John Stumpf, the bank's chairman and CEO, will forfeit about $41 million of unvested stock awards and forgo his salary while the company investigates its retail banking sales practices after hundreds of thousands of sham accounts were allegedly opened by employees to meet their targets. Carrie Tolstedt, Wells Fargo's former head of community banking, also will forgo her unvested equity stock awards, valued at $19 million, and will not receive retirement benefits worth millions more. Neither Tolstedt nor Stumpf will receive 2016 bonuses.

For decades, federal regulators have been empowered to pursue the reimbursement of executive pay in a practice often called "clawing back" when an individual violates securities laws. But the power was rarely used because successful clawbacks would have required a conviction or at least a credible threat of one.

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But companies will likely be driven to think more about about clawbacks in the coming months. The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 calls for strengthening clawback rules. And the Securities and Exchange Commission is currently receiving public comments for new rules. If implemented by the SEC later this year, as widely expected, the new rules would allow the agency to force clawbacks in more cases beyond those involving deliberate fraud. Restated earnings stemming from negligence could also trigger clawbacks.

Even before these more recent developments, the legal firepower to take back compensation in cases of misconduct has been increasing. The Sarbanes-Oxley Act in 2002, which reformed corporate accounting practices, widened the regulators’ scope to pursue clawbacks. The law empowered the Securities and Exchange Commission to mandate top executives to reimburse portions of their pay if their company restates financial statements due to fraudulent misconduct.

The change drove many companies to establish their own internal guidelines about clawbacks. But “policies are written in such a way that they’re unlikely to be actually used,” says Jesse Fried, professor of law at Harvard Law School.

As of 2013, about 60% of the companies in the S&P Composite 1500 Index — and 80% of S&P 500 — had clawback provisions, says Ilona Babenko, professor of finance at Arizona State University. “Banking and financial services companies are more likely to have it,” she says.

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But with board directors generally reluctant to punish their own executives, few companies have exercised their provisions, Babanko says. In her research, she concluded that, in monitoring the period between 2001 to 2013, 272 companies with clawback provisions had restated their earnings. She found clawbacks were triggered in “less than 10 cases,” she says.

Some notable clawback cases include agrochemical manufacturer Monsanto this year, UnitedHealth Group in 2007, CSK Auto in 2011 and J.P. Morgan in 2012.

Companies’ general reluctance to claw back pay may stem from their desire to retain top executives, avoid litigation by departed executives and minimize bad publicity, says Jesse Fried, professor of law at Harvard Law School. Some companies may choose to reduce a CEO’s current pay rather than claw back already-received pay. “It is much less embarrassing for the CEO,” Fried says.

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Dodd-Frank “will require companies to recoup excess pay arising in connection with a (financial) restatement. There will be a lot more clawbacks because companies will not have discretion to forgo recoupment when a covered executive has received excess pay,” Fried says.

Wells Fargo’s clawback provisions are more comprehensive than the parameters required by the existing rules. Stumpf and Tolstedt are not criminally accused of fraud. “The pressure on Wells Fargo to claw back compensation is not because accounting numbers need to be restated,” says Wayne Guay, accounting professor at the University of Pennsylvania. “The issue is that there are some executives who are alleged to not have done their job well. That’s a step well beyond the clawback provisons most companies would allow for.

“Companies are worried about setting bad precedence of punishing people before all facts come out. It may make them very well risk averse. The boards need to move very slowly and carefully.”

Fried questions if Wells Fargo’s actions were motivated by its clawback policy. “The board and the CEO figured out that they have to do something to get the government, the press and institutional investors off their backs,” he says. “They need to demonstrate accountability and contrition."

For its part, Wells Fargo might not be done.

“The independent members of the board will take such other actions as they collectively deem appropriate, which may include further compensation actions,” Stephen Sanger, Wells Fargo’s lead independent director, said Tuesday in a statement.

Follow USA TODAY media reporter Roger Yu on Twitter @ByRogerYu.