Poll: Bankers Sound Off on Election


election-10-19-16.pngA majority of bankers believe that Republican presidential candidate Donald Trump will have a more positive impact on the nation’s economy than Democratic nominee Hillary Clinton if he’s elected to the Oval Office on November 8, although many professional economists disagree. And he’s probably got their vote, too, according to Bank Director’s 2017 Bank M&A Survey, sponsored by Crowe Horwath LLP. However, fewer say they support Trump, compared to bankers who said they’d vote for Mitt Romney in 2012.

  • Fifty-five (55) percent believe that a Trump presidency would be best for the United States economy.
  • Fifty-eight (58) percent plan to vote for Trump, compared to 10 percent for Clinton. Twenty-one percent are unsure which candidate, if any, has their vote.
  • Sixty-six (66) percent believe that Trump is more likely to reduce the industry’s regulatory burden.

More than 200 bank executives and directors participated in the survey. Bank Director’s survey was conducted in September, before the debates took place and allegations of sexual assault surfaced against Trump. During the survey period, Real Clear Politics, which aggregates poll averages across the country, had Clinton polling ahead of Trump by 0.9 to 3.9 percent. The news outlet predicts a Clinton victory at this time.

Economists are not all in agreement about the impact that a Trump presidency would have on the U.S. economy, in part due to his ideas on taxes and trade. Several have predicted a dire outcome if Trump prevails on Election Day. The advisory firm Oxford Economics, based in Oxford, England, predicted in September that the economic policies outlined by Trump could shrink the U.S. economy by $1 trillion by 2021. The rating agency Moody’s Analytics stated in June that a Trump administration will isolate the U.S. economy, incur more government debt and result in the loss of 3.5 million jobs. A month later Moody’s predicted that Clinton’s economic policies would “result in a somewhat stronger U.S. economy.”

In contrast, David Woo, head of global interest rates and currencies research at Bank of America, told Bloomberg in September that in a Trump presidency “the U.S. economy would probably take off in a big way,” due to the candidate’s proposed fiscal policies, including extensive spending on infrastructure and tax cuts.

Richard Hunt of the Consumer Bankers Association says bankers don’t put a lot of faith in these sorts of wonkish pronouncements. Bankers see an experienced CEO in Trump, not a career-long politician like Clinton. “[Clinton would be] a continuation of [President] Obama’s policies, and a lot of bankers are frustrated,” says Hunt. The CBA doesn’t endorse a specific candidate for the nation’s top office.

Trump’s statements indicate a consistent distaste for regulation. “Dodd-Frank has to be either eliminated or changed greatly,” Trump told CNBC in May 2016. “The regulators are running the banks.”

Clinton plans to defend the Dodd-Frank Act. Her campaign also advocates new reforms for the financial sector, including a so-called “risk fee” for big banks that would scale higher for banks with larger amounts of and riskier forms of debt, compensation rules to curb risky behavior and a strengthened Volcker rule. Breaking up big banks is also on the table.

Bankers aren’t as in love with Trump as with past Republican nominees. In a survey conducted in advance of the 2012 election, Bank Director found that 79 percent supported Mitt Romney, compared to 8 percent for President Obama and 13 percent undecided. Support for Romney was 21 points higher than for Trump. It’s not that Clinton is seeing significantly more support—more bank executives and board members are unsure of whom to support, if anyone, compared to four years ago.

In a recent twist for the industry, this year’s election could be crucial to the future of the Consumer Financial Protection Bureau. On October 11, a federal appeals court found the bureau’s structure to be unconstitutional, and ruled that its directorship should fall under the control of the president, a decision that could be appealed by the Obama administration. If that decision isn’t overturned, it’s likely that a Clinton presidency would strengthen the agency. A Trump administration is likely to weaken the CFPB.

“It has to be Trump,” says Blair Hillyer, the chief executive officer at First National Bank of Dennison, a $221 million asset community bank in Dennison, Ohio. He’s a lifetime Republican that isn’t thrilled with either candidate, but he believes that Dodd-Frank has been too damaging to the industry. Under Hillary Clinton, “the regulation would continue, and we’ll continue to lose community banks,” he says.

The complete results of the 2017 Bank M&A Survey will be available on BankDirector.com in November.

Bank Compensation and Governance in the New Era


governance-9-28-16.pngNew compensation and governance standards are impacting boards of directors in all industries, but even more so in banking, which has more regulatory requirements and is under greater scrutiny. The recent Wells Fargo & Co. $185 million settlement over alleged accounts opened without customer permission illustrates that even the most admired banks with seemingly solid risk management practices can succumb to these challenges. Scrutiny of board oversight, risk management processes and incentive plans will continue to increase.

Recently proposed Dodd-Frank Act incentive compensation rules seek to mandate specific incentive design features that regulators believe will mitigate risk taking. If finalized as proposed, incentive arrangements will require both financial and non-financial measures and be subject to increased controls, documentation, governance and oversight by boards of directors, most notably the compensation committee. Larger banks ($50 billion in assets or greater) will be required to defer compensation over multiple years and include forfeitures, risk adjustments and clawbacks for top executives and other employees defined as “significant risk takers.

Publicly traded banks face additional pressures and scrutiny from shareholders. Shareholder advisory votes on executive pay have influenced pay program designs and practices. Today, there is a greater focus on long-term compensation that aligns executives with shareholder interests. Pay and performance is more rigorously assessed and criticized. Proxy disclosure has shifted from basic compliance with Securities and Exchange (SEC) requirements to a “marketing-based approach” for companies to communicate the rationale and results of their pay programs. Engagement with shareholders also is increasing.

Below are some of the characteristics that will define the board’s role in this new era:

  1. Reinforce Risk Culture: As highlighted by the Wells Fargo situation, everyone from the branch manager to the board of directors needs to embrace a culture of sound risk management practices. Boards need to help reinforce a culture of risk management, monitor compliance and ensure there are consequences for bad risk behavior at all levels of the organization. Whether it calls for termination of employee(s) or clawback/forfeiture of compensation, accountability should be meaningful. Significant compliance failures can put a spotlight on board oversight.
  2. Challenge Status Quo: The recent focus on the age, tenure and diversity of board members reflects a perception of potential entrenchment among boards of directors. The real issue isn’t necessarily age or tenure but rather ensuring board members are willing to challenge the status quo, ask potentially unpopular questions and embrace different perspectives needed to ensure the bank continues to succeed in an increasingly competitive and complex environment. Incorporating this behavior in board evaluations can reinforce acceptance of diverse perspectives.
  3. Proactively Recruit for Future Skills: As banks change their strategies on cyber risk, technology and product innovation, the composition of the board of directors must also evolve. The nominating committee should proactively define the future skills and experience needed on the board and strategically fill board positions (e.g. seek board candidates that meet multiple needs, such as someone with public company and technology expertise). In addition, ongoing board education should be formalized to ensure current members receive up-to-date information on industry trends and regulations.
  4. Embrace Engagement: As their risk oversight role increases, board members can expect to have more discussions with regulators. Public company board members are also becoming more involved in shareholder engagement. For example, lead directors and/or compensation committee chairs are increasingly participating in discussions with shareholders. Boards should discuss the objectives, messages, roles and processes related to these discussions.
  5. Drive Strategy Through Compensation: As banks continue to evolve their strategic plans to respond to the changing competitive landscape, it is equally as important to select incentive measures that reflect and support these goals. The compensation committee should ensure the portfolio of metrics used in the annual and long-term plans communicate to participants, regulators and shareholders how performance is measured and what will be rewarded. Without alignment between goals and strategic plan, the bank could be expending dollars inefficiently and potentially motivating the wrong behaviors.

These are just some of roles for the board in a post-financial crisis era. Use this list to start a dialogue on how your board’s composition, processes and oversight might need to change to adapt to the new environment.

Compliance Costs: How Does Your Bank Compare?


compliance-9-8-16.pngBanks across the country are complaining about the costs of compliance, especially community banks, which have fewer resources.

Now, the Federal Reserve has done a detailed analysis of what those costs actually are. Taking a look at responses from more than 400 financial institutions surveyed in 2015 by the Conference of State Bank Supervisors, researchers Drew Dahl, Andrew Meyer and Michelle Clark Neely at the Federal Reserve Bank of St. Louis recently published findings that banks with less than $100 million in assets are spending roughly three times more relative to their expenses than banks from $1 billion to $10 billion in assets.

Those super-small banks spend roughly 8.7 percent of their noninterest expenses on compliance; while banks from $1 billion to $10 billion in assets spend 2.9 percent on average, the study found.

2014 Mean Compliance Expenses

  Asset Size Categories
<$100M $100M to $250M $250M to $500M $500M to $1B $1B to $10B
Data Processing Expense $27.6
1.5%
$36.8
0.9%
$82.0
0.9%
$108.7
0.6%
$188.3
0.4%
Legal Expense $4.6
0.2%
$5.9
0.1%
$20.0
0.2%
$47.4
0.2%
$134.9
0.2%
Accounting Expense $19.9
1.1%
$31.6
0.7%
$45.6
0.5%
$57.7
0.3%
$188.2
0.3%
Consulting Expense $11.7
0.6%
$18.2
0.4%
$24.0
0.3%
$43.4
0.2%
$129.1
0.2%
Personnel Expense $100
5.3%
$176
3.9%
$312
3.4%
$507
2.8%
$1,203
1.8%
Total Expense $163.8
8.7%
$268.5
5.9%
$483.6
5.3%
$764.2
4.2%
$1,843.5
2.9%
Number of Banks 113 154 121 45 36

Source: Federal Reserve.
NOTES: The sample consists of 469 commercial banks with assets under $10 billion that responded to the Conference of State Bank Supervisors’ survey in 2015 on operations in 2014 and for which complete data are available. Dollar amounts, expressed in thousands, represent means for banks in varying categories. Percentages are means within a category of the ratios of dollar amounts to overall noninterest expenses.

Arthur Johnson, chairman of United Bank in Grand Rapids, Michigan, says the notion that regulations are scalable based on the size of the institution “just isn’t true.” His bank, which has $560 million in assets, is contending with new mortgage disclosures and regulations put forth by the Consumer Financial Protection Bureau as part of the Dodd-Frank Act. People getting a residential mortgage these days have to look at paperwork that’s a quarter of an inch thick. Mortgage is a big part of the bank’s business model, so giving up on it is not an option, he says. Households want a checking account and they want a residential mortgage. “If we can have those two relationships we can feel we will be the primary institution for that household,’’ he says.

For the most part, mortgage activity has not been curtailed. A recent GAO report found that while banks say new regulations coming out of the Dodd-Frank Act have negatively impacted their banks, and their ability to offer some products such as nonqualified mortgages, the level of mortgage lending is actually on the increase.

“The results of surveys we reviewed suggest that there have been moderate to minimal initial reductions in the availability of credit among those responding to the various surveys and regulatory data to date have not confirmed a negative impact on mortgage lending,” the report said.

Paul Schaus, president and CEO of CCG Catalyst, a consulting group, says banks tell him frequently that they are spending more money on compliance than years past. Ten years ago, a community bank might have one compliance officer and a $200,000 budget for compliance. Now, it has five to six employees and a $1 million budget, even though nothing else has changed about the bank.

Some of the biggest compliance headaches involve the Bank Secrecy Act, he says. Even though the law is the same as it has been for many years, enforcement has become tougher, he says. Banks are buying monitoring systems to track transactions, which when first installed, trigger an avalanche of activity that must be analyzed by employees.

He thinks the costs of compliance are among several issues leading to more consolidation among banks. A bank with $400 million in assets can merge with another bank and become one with $800 million in assets that combines its compliance functions.

Another solution short of merging is to narrow the bank’s focus and cut costs that way. A lot of small, community banks still are trying to be everything to everyone, and that’s not going to cut it, Schaus says. “You need to differentiate yourself,’’ he says.

Johnson says his bank is looking at its options to grow to become more efficient, which might mean buying another bank. With five full-time employees working on compliance, two of them lawyers, the cost of compliance has become quite high. “I’ve been here for 45 years and I never thought we’d be big enough to hire our own in-house lawyer,’’ he says.

Julie Stackhouse, the executive vice president for banking supervision at the St. Louis Fed, says she hears all the time that community banks are struggling under the weight of compliance, but they have other problems too, including low interest rates and slow growth in many of the small communities where they do business.

“The costs clearly are being attributed to consumer compliance laws and regulations, and there have been several new ones; and the ongoing costs of BSA and anti-money laundering legislation, which has been here for some time,” she says. She says banks are spending more on computer systems to help with compliance and BSA.

Highly Rated Banks Don’t Spend More
Further, researchers analyzed whether banks who spend more on compliance have better management ratings on regulatory exams than banks who spend less. Apparently, that wasn’t the case. Other factors, such as the ability of management, the audit committee and auditors to work together to properly focus oversight attention, may better determine management ratings than the sheer number of dollars you spend on compliance, the researchers found.

In fact, for very highly rated banks under $100 million in assets, which received a “1” rating on their management score, the spend was about 6.8 percent of noninterest expenses, compared to 9.1 percent on average for everybody else in their size category.

There are obviously problems comparing your banks with others in your asset class. Some banks may have relatively high expenses because they do business in expensive cities such as San Francisco, or because they have expensive but highly profitable business models, so it doesn’t always make sense to compare your bank with an average.

Overall, though, Stackhouse thinks the study will be very useful. “Having research that supports analysis of the issues is going to be very useful for us going forward,’’ she says.

Do You Understand the New Incentive Compensation Proposed Rules?


compensation-9-7-16.pngFederal banking and securities regulators published a notice of proposed rulemaking revisiting incentive compensation standards that were originally proposed in 2011. The 2016 proposal provides a more prescriptive approach for larger financial institutions than the previous proposal, and it applies to institutions with $1 billion or more in assets. As with prior guidance applicable to incentive compensation, the overarching principles should be considered by financial institutions of all sizes when designing their compensation programs consistent with the Interagency Guidance on Sound Incentive Compensation Policies issued in June 2010, which applies to all banking organizations regardless of asset size.

The 2016 proposal is similar to the previous proposal in that it prohibits excessive compensation to “covered” persons. However, unlike the 2011 proposal, the 2016 proposal more clearly defines requirements of institutions by creating three levels based on average total consolidated assets, with the lowest scrutiny applying to Level 3 institutions, those that have assets of $1 billion or more but less than $50 billion.

The proposal has implications for any incentive compensation provided to officers, directors, employees and principal shareholders associated with an institution with assets of $1 billion or more. As required under the Dodd-Frank Act, the proposal tries to discourage excessive compensation and compensation that could lead to a material financial loss.

Excessive Compensation
There are two distinct elements for consideration. First is excessive compensation, which involves amounts paid that are unreasonable or disproportionate to the amount, nature, quality and scope of services performed by the covered person. Types of information the regulatory agencies will consider in making this assessment include, among others:

  • The combined value of all compensation, fees or benefits provided to the covered person;
  • The compensation history of the covered person and similarly-situated individuals;
  • The financial condition of the covered institution;
  • Peer group practices; and
  • Any connection between the individual and any fraudulent act or omission, breach of fiduciary duty or insider abuse.

Material Financial Loss
In determining whether incentive-based compensation could lead to a material financial loss, regulators have previously stated that they will balance potential risks with the financial reward and assess whether the institution has effective controls and strong corporate governance. The 2016 proposal specifically provides that an incentive-based compensation arrangement would not be considered to appropriately balance risk and reward unless it:

  • Includes 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 performance.

Additional Elements of the 2016 Proposal
The 2016 proposal re-emphasizes that internal controls and corporate governance are essential in monitoring risks related to incentive compensation. The 2016 proposal also contains a requirement that certain records must be disclosed upon request of the covered institution’s federal banking regulator.

The 2016 proposal will be effective 540 days after publication of the final rule and does not apply to any incentive plans with a performance period that begins before the effective date. Similarly, an institution that increases assets to become a Level 1, 2 or 3 institution must comply with rules applicable to that level within 540 days of the triggering size (determined based on asset size over the four most recent consecutive quarters).

Considerations
We recommend that boards begin taking steps in order to comply with the 2016 proposal and the Guidance.

  1. Consider whether any of the institution’s incentive-based compensation is excessive or encourages risks that could result in a material financial loss by: applying the excessive compensation factors as set forth above; making compensation sensitive to risk through deferrals, longer performance periods and claw-backs; and considering a peer group study.
  2. Document relevant considerations as evidence of compliance with the Guidance at the committee and board levels.
  3. Implement controls and governance to oversee and monitor compensation and determine whether to risk–adjust awards.
  4. Review compensation policies annually.

Cutting Compliance Costs with Regtech


FXT-compliance.png

I was having a discussion about the future of banking with some fellow investors recently and one of my younger and more tech savvy associates opined that fintech companies would soon make traditional branch banking obsolete. It is a provocative idea but I am pretty sure he is wrong. Two decades from now it will still be fairly easy to find a bank branch a short drive away even if it is in a driverless car. Bankers will adapt and banking will become more mobile and more digital, but there will always be a place for banks and their branches in the economy.

Bankers are not sitting in their offices waiting to be replaced. They are finding ways to use new technology advancements to make their business faster, more efficient-and most importantly, less expensive. This is particularly true in one of the highest cost centers in the bank-regulatory compliance-where the automation of that detail intensive process is providing huge cost benefits. Compliance costs have been spiraling upward since the financial crisis led to an avalanche of new regulations, and technology might be the industry’s best hope of bringing those costs back down.

Bankers are starting to see the advantages of big data and analytics-based solutions when they are applied to the compliance challenge. “Although still in the early stages, banks are applying big data and advanced analytics across customer-facing channels, up and down the supply chain, and in risk and compliance functions,” said Bank of the West Chairman Michael Shepherd in a recent interview with the Reuters news service. For example, a growing number of banks are using new technology to automate the enormous data collection and management processes needed to file the proper compliance reports, particularly in areas like the Bank Secrecy Act. This new technology can help regional and community banks address data gathering and reporting challenges for regulatory compliance.

Smaller banks in particular are looking to partner with companies that can help build a data driven approach to compliance management. More than 80 percent of community banks have reported that compliance costs have risen by at least 5 percent as a result of the passage of the Dodd-Frank Act and the expense is causing many of the smallest institutions to seek merger partners. In fact, two of the biggest drivers of my investment process in the community bank stock sector is to identify banks where compliance costs are too high, and where there is a need to spend an enormous amount of money to bring their technology up to date. Odds are that those banks will be looking for a merger partner sooner rather than later.

While banks are looking to make the compliance process quicker, easier and cheaper, they also need to be aware that the regulators are developing a higher level of interest in the industry’s data collection and management systems as well. A recent report from consulting firm Deloitte noted that “[In] recent years regulatory reporting problems across the banking industry have more broadly called into question the credibility of data used for capital distributions and other key decisions. The [Federal Reserve Board] in particular is requesting specific details on the data quality controls and reconciliation processes that firms are using to determine the accuracy of their regulatory reports and capital plan submissions.”

The Consumer Financial Protection Bureau is also monitoring the compliance management process very closely. An assistant director there was quoted recently as saying that the bureau is increasingly focusing its supervisory work on the third-party compliance systems that both banks and nonbanks sometimes rely on. This is the behind-the-scenes technology that drives and supports the compliance process.

There is a developing opportunity for fintech companies to focus their efforts on providing regtech solutions to regional and community banks. The cost of compliance is excessive for many of these institutions and, for some, place their very survival into question. Regtech firms that develop compliance systems that are faster, more efficient and can help cut compliance costs significantly in a manner acceptable to the regulatory agencies will find a large and fast growing market for their services.

How to Reduce Bank Risk and Improve Overall Returns with SBICs


bank-risk-8-19-16.pngMany banks operate under the false pretense that because they are deemed a “conservative bank,” there isn’t a lot of risk in their business model. I often remind boards of directors that they sit on a highly leveraged, regulated hedge fund. Would they lend money to a finance company leveraged 10 times or more, while trying to manage a 3.5 percent spread? That’s your average bank. So it might be a good idea to consider an opportunity to reduce risk, even by an incremental amount.

The first thing to do is identify the area with the greatest risk. Most banks view it as credit risk, and vigorously address this with underwriting, loan committee, loan reviews, regulatory exams, reserves, limits and diversification. Banks do a great job of this. However, in our experience, the greatest area of risk, receiving the least amount of attention, is a bank’s “bond-like risk,” which shows up in the structure of securities, loans and deposits.

This risk is basically interest rate risk, and the devil is in such details as yield curves, repricing risk and maturities. While asset/liability management strategies may help, they don’t reduce the problem banks have with their dependence on duration (which is the measurement of the sensitivity of a bond to interest rate fluctuations) in exchange for a decent return. Over 80 percent of risk factor contribution to the price volatility on a bank’s balance sheet is caused by nominal duration. What this means is loans, securities and deposits all have the same structured risk which is caused by maturities and cash flows. In light of this enormous risk concentration, pension funds, endowments, foundations and other institutions diversify this risk via stock and private equity allocations. For example, private equity allocations can reduce risk and increase returns through:

  • Lower volatility of returns over time compared to duration-based assets like loans and bonds. Yes, private equity has a lower volatility risk than a two-year Treasury note.
  • Higher Sharpe Ratios than bonds or loans, which means higher returns per unit of risk. (William F. Sharpe first introduced returns-based style analysis in the late 1980s, hence the name “Sharpe Ratio.”)
  • Very low correlation coefficients to bonds and loans, meaning the returns don’t track those of bonds or loans which will help your bank diversify its earnings stream. Banks currently try to do this through non-interest income.
  • Economic cycle diversification benefits for banks that can only lend money even when pressed by market forces on pricing and structure. Private equity mitigates this by investing in different parts of the capital structure than loans, and by less stringent investing periods than banks. Banks need to lend or invest their depositors’ funds immediately. Private equity funds can be more patient because they typically have a three- to five-year window in which to put their investors’ money to work.

Banks aren’t allowed to invest in private equity funds, so why am I telling you this? While banks are prohibited from investing in private equity funds, there is an exception in the Dodd-Frank Act’s Volcker Rule for Small Business Investment Companies (SBICs), which are funds that invest in small businesses and private companies. Hundreds of banks have taken advantage of this program since 1958. There are several benefits to these investment vehicles. Banks can:

  • Help create jobs and expand the economy.
  • Get Community Reinvestment Act (CRA) credit.
  • Get CRA service credit by serving on an advisory board.
  • Create opportunities for senior C&I loans.
  • Create opportunities for commercial deposits.
  • Offer solutions to customers who need a liquidity event, more equity in their business or support for a senior loan.
  • Earn a nice return.

SBICs, like private equity, also help reduce the aforementioned risks of volatility, duration, correlations, Sharpe Ratios, economic cycle timing and diversification, which theoretically should increase portfolio returns. SBICs can make a bank safer and more profitable. Top quartile returns (returns in the top 25 percent) for SBICs from 1998 to 2010 were higher than 15 percent, while even the bottom quartile was 6.3 percent. So even a poor performing SBIC has produced higher returns than most any other asset opportunity available to a bank during this time frame. To reduce the risk of investing in a poor performing SBIC, a bank can do the following:

  1. Develop underwriting practices, like a bank does on loans, tailored to SBICs, targeting top quartile returns.
  2. Create a portfolio of multiple SBICs based on the 5 percent capital limit for bank investments to diversify company and fund manager exposure.
  3. Seek the advice of financial advisory firm.

Being conservative doesn’t mean not doing anything new, it means constantly trying to find ways to decrease risk. Any time one can reduce risk and increase profitability, it should be strongly evaluated.

Clawbacks Are Coming. Are You Ready?


clawbacks-8-1-16.pngFive years after the passage of Section 954 of Dodd-Frank adding new provisions on clawbacks, we expect the Securities and Exchange Commission (SEC) to make some minor adjustments to its proposal and adopt a final rule before summer’s end.

The proposal, which would amend Section 10D of the Securities Exchange Act of 1934, shifts responsibility for recouping excess compensation from the SEC to the registrant, creates a non-fault standard as opposed to the Sarbanes-Oxley “misconduct” standard, extends the clawback period to three years and significantly expands the number of executives subject to its reach. Almost all issuers publicly registered with the SEC, including smaller reporting companies and current or former executive officers, are covered. Small and emerging companies, which previously were exempt under Reg SK from making detailed compensation disclosures, will shoulder a disproportionate burden.

Which Officers Are Subject to Section 10D Clawback?
Unlike Sarbanes-Oxley, which only applies to the CEO and CFO, the proposal uses the definition of executive officer from Rule 240.16a-1. It includes principal officers as well as any vice president in charge of a principal business unit, division or function and any other persons who perform similar policy-making functions for the registrant.

What Triggers a Clawback?
The law requires that the company recoup excess compensation received during the three-year period prior to the date the issuer is required to prepare an accounting restatement. Again, unlike Sarbanes-Oxley, no misconduct or error on the part of the executive need be shown. The accounting restatement is the triggering event.

What Type of Compensation Is Subject to the Rule?
The proposed rule applies to all “incentive-based compensation,” which is defined as any compensation that is granted earned or vested based wholly or in part upon the attainment of any “financial reporting measure.” A financial reporting measure is defined to mean any measure derived wholly or in part from financial information presented in the company’s financial statements, stock price or total shareholder return. This is an expansion of the language of Dodd-Frank which states that the law applies to incentive-based compensation that is based on financial information required to be reported under the securities laws. The proposed rule excludes by its terms salaries, discretionary bonus plans, time-based equity awards or other payments not based on financial reporting measures, including strategic or operational metrics.

What Is Excess Compensation?
Excess compensation is defined to be erroneously awarded compensation that the officer receives based on erroneous information in excess of what would have been received under the accounting restatement. Examples include unexercised options, exercised options with unsold underlying shares still held and exercised options with underlying shares already sold. Similarly, all excess stock appreciation rights and restricted stock units awarded must be forfeited and if already sold, any proceeds returned to the company. The clawback would also apply to bonus pools and retirement plans based on the attainment of financial metrics. What should be emphasized is the law and proposed rule leave almost no discretion to the company. Clawback is mandatory except in cases where the pursuit of recovery would be futile or counterproductive.

What Is the Tax Consequence of a Clawback?
What is particularly troublesome is the tax complications. The most common problem is likely to be that the employee will be taxed fully on the original income. When income is paid back in a different tax year, it will be treated most likely as a miscellaneous itemized deduction and its full deductibility will be subject to whether the taxpayer has sufficient deductions to equal or exceed the 2 percent threshold of adjusted gross income. A clawback could have the effect of penalizing the employee through no fault of his own beyond the amount received.

How Should a SEC Registered Bank Adjust Its Compensation Approach?
Banks which may qualify to deregister should consider it. For companies that desire to remain registered or who have no alternative, then executives should consider purchasing insurance products with their personal funds to hedge against an unexpected loss of income already earned and spent. The SEC rule does not permit the issuer to indemnify or purchase insurance for the executive to cover clawbacks. What is unfortunate is that onerous rules governing circumstances out of the control of most executives only makes performance-based incentive compensation less desirable.

How the New Regulatory Environment Could Change Bank Mergers and Acquisitions


mergers-7-25-16.pngThrough many merger cycles, the basic template for M&A deals in the banking sector hasn’t changed very much. Provisions governing the regulatory process included fairly conventional cooperation undertakings, including rights to review. Time periods and drop-dead dates were matched to the regulatory requirements and expectations. The level of effort required on the part of the buyer and the target to obtain regulatory approvals was limited: Neither party would be required to take steps that would have a material adverse effect, typically measured relative to the size of the target. Reverse termination fees, payable by buyers if regulatory approvals were not forthcoming, were rare. Covenants governing the target’s operations between signing and closing were conventional and not unduly controversial.

Deals continue to get done on this basis but in the post-Dodd-Frank era, the regulatory climate is creating new forces that could reshape some of these basic M&A terms. These changes arise for several reasons. First, regulators increasingly see mergers as an occasion to scrutinize the buyer—its compliance record, systems, capacity to integrate and general good standing. In its September 2015 approval of M&T Corp.’s acquisition of Hudson City Bancorp, the Federal Reserve starkly warned that if an examiner identifies a material weakness in an acquiring bank, it will expect the bank to withdraw its application and resolve the issue before proceeding with the transaction.

The specter that the buyer’s challenges or standing can cause the target to be left at the altar has not yet fully worked its way through our M&A contract provisions. This is quite a different sort of regulatory risk, from the target’s point of view, than concerns about potential liabilities of the target or concerns about the competitive effects of the combination, which both parties can evaluate. Already, this regulatory focus has led targets to perform regulatory diligence on buyers, even in cash deals. As the M&A process continues to evolve, targets may try to distinguish between different kinds of regulatory risk and seek explicit protection where the sins of a buyer spoil the ceremony. Alternatively, it may prove too difficult to determine with certainty the cause of a regulatory obstacle, which could lead targets to seek greater protection for any regulatory failure. In either event, the result could be more requests for regulatory break-up fees—targeted or broad-based.

A number of other M&A provisions could be affected as well. For example, as the pendency of agreements becomes longer to allow time for an uncertain regulatory process, the market and intervening events that could change the value of the target or the buyer’s currency become more important, which in turn will increase the importance of material adverse effect conditions, interim covenants, the structure of “fiduciary outs” enabling a target board no longer to recommend an agreed deal, the size of break-up fees, the timing of shareholder votes, and the consequences of a no vote. In stock-for-stock deals between companies of comparable size, there is often a helpful symmetry to the parties’ situations and incentives, which could result in both parties wanting to limit the conditions under which they can back out of a deal—or, conceivably, the reverse. In cash deals or other true acquisitions, that symmetry is absent and each side can be expected to push for protection from the other’s problems. For the buyer, this may mean seeking greater conditionality in the event of adverse developments as well as tougher interim covenants. For the target, it may mean more regulatory protection and greater flexibility to respond to intervening events.

Longer delays and greater volatility also impact techniques for determining the merger consideration in stock deals. A fixed exchange ratio in which the buyer offers an agreed number of its shares in exchange for each share of the target, long a staple, implicitly presumes that the value of the two companies will likely move in sync. As the prospect of asymmetrical changes in value increases—which can be a result of an increasingly vigorous regulatory environment—there is some urge to fix the value of the buyer’s consideration, rather than the number of buyer shares. More fixed value deals will lead to negotiation over “collars” that create minimum and maximum numbers of shares the buyer is obligated to issue in the transaction, and, perhaps, walk-away rights that enable one party or the other to terminate the deal if the buyer’s stock price becomes too high or too low.

It’s too early to assess the impact of the changing regulatory climate on the M&A craft, but there are many reasons to think the current template will evolve, perhaps quite rapidly. That, of course, will put a premium on thoughtful lawyering and creative, practical solutions.

Three Reasons Why You Should Care About the New Proposed Incentive Compensation Rules


compensation-7-4-16.pngOne of the dangers of the snail-paced rulemaking under certain sections of the Dodd-Frank Act (DFA) is that we all get lulled to sleep and simply yawn when another set of proposed rules surfaces—especially when five years elapse between proposals. But here we are. Another round of proposed rules under DFA Section 956 was jointly released by six regulatory agencies in April and is intended to establish incentive compensation rules for financial institutions with assets greater than $1 billion.

Here are three reasons why you should care.

Reason #1: These will be rules—not guidance.
The underlying intent of the proposed rules should be familiar to banks and thrifts, as the foundation for the rulemaking is taken directly from the interagency Guidance on Sound Incentive Compensation Policies (SICP Guidance) which has applied to all banks and thrifts since June 2010. However, not all institutions have made a serious effort to comply with the spirit of the SICP Guidance and bank regulators have been somewhat lax in this area for community and regional institutions unless there have been problems in other areas of the bank. But under the pending rules, covered institutions will be required to create and maintain records for a minimum period of seven years, demonstrating compliance with the rule. Presumably, that means noncompliance in any given year could be challenged by regulators during an examination conducted up to seven years later, heightening the importance of ensuring compliance from the very first year the rules are in effect (as early as 2019). We encourage covered institutions to use this interim time in advance of the final rules to reevaluate policies, procedures and documentation related to incentive compensation risk management to determine if they are prepared for compliance.

Reason #2: There are certain plan features you must include.
A more prescriptive tone is being set by this round of the proposed rules, with three “musts” outlined for incentive arrangements at all covered institutions:

  • Must include both financial and non-financial measures;
  • Must allow non-financial measures to override financial measures, if appropriate; and
  • Must provide for downward adjustments to reflect actual losses, certain risk-taking, compliance deficiencies, and other measures or aspects of performance.

The concept of non-financial performance measures in incentive arrangements is not new for banks. But a regulator’s definition of “non-financial” almost certainly is focused on safety and soundness, and not necessarily on business or leadership strategy. Start thinking about how your incentive arrangements will address the “musts,” particularly related to the ways in which risk-oriented non-financial performance measures might be incorporated in a way that doesn’t diminish the incentive plan’s effectiveness.

Reason #3: You may need to punch above your weight class.
Sure, the most rigorous requirements under the proposed rules appear to be focused on institutions with assets over $50 billion. But don’t take too much comfort in being under $50 billion in assets, or under $1 billion, for that matter. The proposed rules explicitly provide for the relevant agency to treat a covered institution with $10 billion in assets as though it’s the one of the big guys if it deems the institution warrants such treatment. And since there are explicit provisions for ignoring the size of an organization under the rules, trickle-down regulatory expectations will inevitably reach institutions not technically covered under the rules, even if only through deeper review of compliance with the SICP Guidance. Our advice: err toward complying with the requirements of the next level up.

Given this is round two of the proposed rules, the final rules will likely be very similar to the April proposal. So, if we caught you yawning, we encourage you to wake up, grab a cup of coffee, and take some productive steps. Now is the time for action, so you can rest assured your institution will be ready.

New Incentive Compensation Rules Will Impact Banks and Their Boards


incentive-compensation-6-27-16.pngRecently, four of six regulators issued an inter-agency proposal for new rules on incentive compensation under §956 of the Dodd-Frank Act. The new rules replace the joint rules proposed in 2011, which never went into effect. Banks boards must approve incentive compensation plans for senior executives and “risk takers” under the framework of the law.

Four Key Differences
While some of the re-proposal is the same, there are important differences between the new rules and the 2011 rules. Here we touch on four key differences, and one important similarity.

1. The regulators have been “getting smart” on incentive compensation. While the 2011 rules seemed to have been proposed in a vacuum, the regulators have indicated that the new rules are based on their collective supervisory experiences gained over the last several years. The new rules incorporate practices that institutions and foreign regulators have adopted to address compensation practices that may have contributed to the financial crisis.

2. The new rules try to lessen the burden on smaller institutions by further dividing banks into categories based on assets and by scaling the requirements. The new rules recognize three categories each of which will be subject to varying levels of oversight:

  • Level 1 (greater than or equal to $250 billion);
  • Level 2 (greater than or equal to $50 billion and less than $250 billion); and
  • Level 3 (greater than or equal to $1 billion and less than $50 billion).

Institutions with average total consolidated assets of less than $1 billion will be subject only to the “safety and soundness” aspects described below. In most cases, the new rules apply the most stringent aspects only to Levels 1 and 2, while Level 3 just has primarily governance and recordkeeping obligations. However, regulators do have the discretion to subject Level 3 institutions to the rules applicable to Level 1 and 2 institutions.

3. The new rules get more specific about troublesome compensation designs. An incentive compensation arrangement will not be considered to appropriately balance risk and reward unless it:

  • Includes 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 performance.

4. The new rules extend mandatory deferral and clawback periods for Level 1 and 2 institutions. At their most restrictive, the new rules will require deferral for at least four years of at least 60 percent of senior executive officers’ incentive compensation and at least 50 percent of significant risk-takers’ incentive compensation. In addition, the new rules will require clawback provisions that, at a minimum, allow the institution to recover incentive compensation from the same individuals for seven years following the date on which the compensation vests, if the institution determines that the individual engaged in misconduct, fraud or intentional misrepresentation of information.

One Similarity
In addition to the foregoing key differences from the 2011 proposal, one important aspect remains the same. Similar to the 2011 rules, the new rules will prohibit all institutions from establishing or maintaining incentive compensation plans that encourage inappropriate risk by providing excessive compensation, fees, or benefits or that could lead to material financial loss to the covered institution. In this regard, the new rules continue to rely on the bank regulators’ “safety and soundness” guidelines respecting all compensation arrangements. In particular, in assessing the balance of risk and reward with respect to any compensation arrangement, institutions should consider all relevant factors including:

  • The combined value of all compensation, fees, or benefits provided to a covered person;
  • The compensation history of the covered person and other individuals with comparable expertise at the covered institution;
  • The financial condition of the covered institution;
  • Compensation practices at comparable institutions, based upon such factors as asset size, geographic location, and the complexity of the covered institution’s operations and assets;
  • For post-employment benefits, the projected total cost and benefit to the covered institution; and
  • Any connection between the covered person and any fraudulent act or omission, breach of trust or fiduciary duty, or insider abuse with regard to the covered institution.

Effective Date and Transition
It is expected that the last two regulators will publish their version of the new rules in the coming weeks. Variation between versions is not expected. A comment period will follow publication by each of the regulators. The new rules will become effective approximately 18 months after being published in final form. The new rules will not apply to any incentive compensation plan with a performance period that begins before the final rules are effective.