Equitable Clawback: An Essay on Restoration of Executive Compensation

Abstract

The remedy of restoration of compensation, known in the agency context as the faithless servant doctrine, provides for the corporate principal's recovery of compensation previously paid or payable to corporate officers and other agents who have breached their fiduciary obligations. Although a limited clawback provision was one of the reforms enacted as part of the Sarbanes-Oxley Act, courts have refused to imply a private remedy, and, even if they were to do so, it would be of limited utility. Given the many variations of the clawback concept, including the demands for clawback of AIG and Merrill Lynch bonuses and of pre-bankruptcy returns paid to Madoff investors, I have chosen to distinguish the equitable remedy of restoration of compensation as equitable clawback. My essay contends that the remedy's increased recognition and broader use would add primacy to individual versus entity liability, and, consequently, help reestablish the link between executive wealth and executive responsibility.