Defining Issues | October 2021



SEC reopens proposal on compensation clawback policies

Comment period on 2015 proposal to implement Section 954 of Dodd-Frank Act reopened with additional questions.

In July 2015, the SEC proposed rules to implement listing standards for the recovery of compensation later determined to be awarded based on incorrect financial statements. The SEC is now revisiting the proposal and reopening the comment period as part of its rulemaking activities.


  • Public companies

Relevant dates

  • July 1, 2015 – Proposal issued
  • October 14, 2021 – Comment period reopened
  • November 22, 2021 – Comments due on proposed rule

Highlights from the proposal and incremental feedback being sought

In 2015, the SEC proposed a rule to implement certain provisions of the Dodd-Frank Act. This rule has yet to be finalized.

  • Requirement that national securities exchanges establish standards requiring listed companies to have a written recovery policy to recoup incentive-based compensation erroneously awarded to executive officers.
  • Definition of circumstances triggering recovery and compensation subject to recovery.
  • Requirement to provide disclosures over recovered incentive-based compensation in the event of a material accounting restatement.
  • Requirement to file the recovery policy as an exhibit to the annual report.

The comments received on the original proposal in 2015 made a number of observations, including concerns with the broad applicability of the proposed rule to:

  • all issuers of listed securities, even those not subject to other SEC executive compensation disclosure requirements;
  • compensation based on measures like share price performance and total shareholder return, given the subjectivity and potential complexity in calculating the impact on those measures of an accounting restatement. 

On October 14, 2021, the SEC issued a release, supported by a statement from SEC Chair Gensler,  that reopens the comment period. It also seeks to gather incremental feedback on the 2015 proposed rule.

  • What should be considered to represent an ‘accounting restatement due to material noncompliance’ and how should certain other terms be defined or interpreted for the purposes of the rule?
  • Whether corrections of immaterial errors to previously issued financial information (sometimes referred to as ‘little r’ restatements) should be within the scope of the definition above.
  • Whether the calculation of excess incentive-based compensation attributable to the restatement should be disclosed when the incentive-based compensation is linked to stock price or total shareholder return.
  • Whether the proposed guidance for triggering the lookback period should be revised to reduce uncertainty in application.

The SEC has posted a fact sheet outlining the background and next steps related to this proposal.

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