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I am happy to see that Mark Borges is back blogging on Borges’ Proxy Disclosure Blog, and I encourage you to check it out! I have already found Mark’s recent blogs on clawback disclosures particularly helpful. Mark explains his return to blogging in this post:

Following a lengthy (25 month) hiatus and discussions with the folks at CCR Corporation (especially Meredith and John), I’ve decided to relaunch the Proxy Disclosure Blog. At the time I began scaling back and then forsaking posting altogether, I believed that my comments on drafting executive compensation disclosure for your proxy statement had run its course and that there wasn’t much new to say. In danger of just repeating myself, I decided to take a break and focus on other activities.

However, as has become abundantly clear, times have changed. Many of the proxy statements that I read today have raised the bar significantly in terms of the quality of their executive compensation disclosure – particularly in the CD&A. I’m constantly encountering disclosures that are dramatically more sophisticated and effective than those of even two short years ago. Frequently, I find myself thinking “I’ve never seen this particular graphic before,” or “that’s a great way to explain this particular incentive plan design,” or “others would probably be interested in seeing this disclosure” (and, occasionally, “why didn’t I think of that?”).

The other obvious change has been the completion of the relevant Dodd-Frank Act rulemaking (with the exception, of course, of Section 956). We’ve all struggled a bit with Item 402(v) of Regulation S-K and the (still) relatively new “pay versus performance” disclosure. Given the rule’s uncertain status, I may be a bit late to the party, but the last time I checked this morning the rule remains effective, so perhaps there’s still a little life left in looking at these disclosures.

The other new disclosure involves Item 402(w) and the follow up to the clawback policies we all had to ensure were in place before the end of 2023. In speaking with practitioners and inhouse counsel, we remain very curious about how Exchange Act Rule 10d-1 and its exchange listing standard counterparts will be applied to enforce a clawback triggered by a financial restatement. Fortunately, as anticipated, this is a disclosure requirement that won’t come into play that often. Nonetheless, some minimal preparation as a safeguard against the day we hope will never come is probably prudent and I know that I’ve been hoping that the initial required disclosures would offer some insights into how companies have approached the mechanics of recovery.

If you do not have access to all of the great resources on CompensationStandards.com, I encourage you to sign up today!

– Dave Lynn