One of the contributing factors to the financial crisis was the excessive level of risk banks and other financial institutions were willing to take, in order to reap the rewards offered to individuals as part of incentive-based pay packages. However, this could be coming to an end in order to create greater long-term economic stability. Financial industry regulators in the US have now invited comment on a proposal which would implement Section 956 of the Dodd-Frank Act, and also amend compensation structures and bank incentive schemes. But how will this rule work, and will it lead to better-behaved banking?

End of Incentive- Based Pay in Financial Institutions?

The newly proposed rule is actually a revision of a rule put forward in Aprill 2011. The rule was developed by six federal regulatory agencies in the US : the Office of the Comptroller of the Currency, the FDIC, the Federal Reserve Board, the Federal Housing Finance Agency (FHFA), the SEC, and the National Credit Union Administration (NCUA).

The rule implements Section 956 of the Dodd-Frank Act, which requires that federal regulating agencies issue together guidelines –

 (1) prohibiting incentive-based payment arrangements that the Agencies determine encourage inappropriate risks by certain financial institutions by providing excessive compensation or that could lead to material financial loss;

(2) requiring those financial institutions to disclose information concerning incentive-based compensation arrangements to the appropriate Federal regulator

Under the Dodd-Frank act, the law will apply to institutions which have $1 billion or more in assets, and are one of the following:

Fannie Mae (Federal National Mortgage Association) 

Freddie Mac (Federal Home Loan Mortgage Corporation)

• Depository institutions or depository institution holding companies
• Investment advisers
• Broker-dealers registered under section 15 of the Securities Exchange Act of 1934
• Credit unions
• Any other institution the regulators jointly decide should be caught under the law

Comptroller of the Currency Thomas J. Curry said:

“By requiring proper alignment of compensation incentives with an organisation’s risk appetite, the rule calls on lending officers and other employees to put the interests of their institution above their own, The rule will play an important role in helping safeguard financial institutions against practices that threaten safety and soundness, or could lead to material financial loss for the institution.”

Will the proposed rule be effective?

The incentive-based compensation rule is designed to ensure that those working in the financial sector are not being incentivized to take action that requires a great deal of risk or unnecessary risk. Initially, for banks with assets of $1-$50 billion, incentive schemes will need to be reviewed and adjusted to ensure that pay is not greatly aligned with factors that lead to risk-taking.

Banks with over $50 billion in assets, will feel the biggest strain as executives may have to defer 50 percent of their incentive-based compensation for up to three years. This system is designed to assist executives in considering longer term goals as opposed to making decisions that will affect their short-term finances.

Representatives from come of the largest financial organisations JPMorgan Chase, Citigroup, and Bank of America declined to comment on the proposals. Furthermore, analysts of the industry have doubts about how effective the implementation fo these new rules will be.

Some industry analysts were not too sure about how effective the rule will actually be. Eric Chader, SVP of the business advisory firm The Collingwood Group said:

“This rule has the ‘Duh’ factor of ATR (Ability to Repay) by requiring corporate boards to ‘conduct oversight’ of the incentive-based compensation programs for its executives and significant risk-takers,”

“The risk, however, appears to be a pass-through to those executives, who are subject to clawbacks, deferrals, and forfeitures within the plans that had been approved by a compensation committee to begin with. This seems like misplaced accountability to me. Applied across all financial institutions, it probably won’t have the effect of shrinking the talent pool for executive positions—there are many other more substantial risks for potential candidates that would do that—like putting executives at the GSEs on the GS scale.”

Taking into account this opinion it seems as if incentive based schemes already benefit from a stringent framework, where those executives in positions with great ability to take risk are subject to stricter rules. However, the proposals may send a message to executives about the appropriateness of risk-taking more generally following the economic downturn.

It will be interesting to see whether the proposals for kerbing incentive-based compensation schemes will have an impact on business in the UK, and also whether US companies operating in the UK will be subject to similar rules internally.

Contact our Financial and White Collar Crime Lawyers in Central London, North London

At Lewis Nedas, we have a specialist team of lawyers who are routinely sought to advise on the rules applicable to banks and bankers in the UK. Our solicitors are highly experienced in assisting both individual and institutional clients that are facing investigations by the FCA on allegations of market manipulation. Our service places the needs of our clients at its core. We will handle every aspect of your dealings with regulatory bodies: our team will advise on how best to facilitate regulatory requirements; we will represent your interests in any negotiation or court appearances, and provide you with practical advice that has been tailored to reflect your circumstances. At Lewis Nedas we have a thorough appreciation of the law and how it applies to those working in financial services. We pride ourselves on being the trusted advisor to many working in this complicated and demanding sphere, where the rules are often difficult to understand. If you are concerned about the law or are perhaps involved with the FCA already, contact our team today

To speak to one of our solicitors, please telephone us on 020 3131 5891 or complete our online enquiry form.

With offices in Camden and Fleet Street, we represent and advise businesses in Central London, West London, North London and across the UK.