MORGANTOWN, W.Va. — A United Auto Workers retiree medical fund is urging Mylan shareholders to back a proposal to expand Mylan’s “clawback” policy for senior executive incentive pay to include certain serious misconduct that could harm the company’s reputation or long-term prospects.
Clawback means recouping incentive pay already granted. Mylan has included the issue as a discussion item for its June 21 annual meeting in Amsterdam, but it is not up for a vote.
However, Meredith Miller, chief corporate governance officer of the UAW Retiree Medical Benefits Trust, sent out a letter, released Friday, urging shareholders to support the proposal on their proxy cards.
Miller says the proposal is recommended by the Investors for Opioid Accountability, which includes state treasurers, comptrollers, asset managers, faith-based investors and public and labor pension funds.
She cites Mylan’s ongoing legal issues as a reason for Mylan to enhance its policy. Among the issues, Mylan is listed as a defendant in over 1500 opioid-related cases consolidated in Ohio federal court. Mylan is among the defendants is price-fixing collusion suits in eastern Pennsylvania federal court and in some state courts.
And in 2016, Mylan settled with the Department of Justice for $465 million related to overcharging Medicaid for its EpiPen product.
The UAW fund owns 82,469 Mylan stock shares, which equates to .16% of all outstanding shares.
The proposal seeks to have the Board of Directors’ Compensation Committee consider seeking recoupment of senior executive incentive pay if “there has been misconduct resulting in a material violation of law or Mylan policy that causes significant financial or reputational harm to Mylan, and the senior executive committed the misconduct or failed in his or her responsibility to manage or monitor conduct or risks.”
The committee would also disclose the circumstances of any recoupment if required by law or regulation or if the committee determines that disclosure is in the best interests of Mylan and its shareholders.
Currently, Mylan says in its proxy statement, it may recoup certain incentive compensation “resulting from specified misconduct that causes Mylan to materially restate its financial statements.”
Miller says, “In our view, significant financial and reputational harm can be caused by misconduct that does not necessitate a financial restatement, and it may be appropriate to hold accountable a senior executive who did not commit misconduct but who failed in his or her management or monitoring responsibility. Our proposal gives the committee discretion to decide whether recoupment is appropriate in particular circumstances.”
She notes that other pharma companies have similar policies, including AbbVie, Assertio Therapeutics, Endo International, Insys Therapeutics, Pfizer, and Teva.
“Adopting a robust misconduct clawback policy assures investors that the Board will actively review executives’ behavior and their incentive pay in the event of significant misconduct and emphasizes that concrete consequences can be imposed for behavior that is detrimental to Mylan’s long-term prospects.”
Mylan says in its proxy statement that it welcomes the opportunity to discuss the proposal and will publish the shareholders’ sentiments, as expressed on the proxy cards, in its meeting minutes and a public SEC filing.
But it believes the proposal is unnecessary. “Mylan currently has a robust clawback policy in place that is applicable to all executives, and we remain fully committed to maintaining our policy in compliance with applicable rules and regulations.”
It notes that the SEC proposed clawback rules back in 2015 but hasn’t adopted them yet. “We believe that rules and regulations to be promulgated by the SEC and stock exchanges will be the most effective and appropriate mechanism for both Mylan, and all companies subject to applicable SEC and stock exchange rules, to adopt uniform changes to clawback policies.
It adds, “An ad hoc, company-by-company approach to updating public company clawback policies (with the expectation for the SEC to implement future rule changes) is at a very minimum premature. Such an approach would create inconsistencies and uncertainties for companies and their executives, as well as shareholders and other stakeholders, because interpretive positions and enforcement approaches will diverge among companies and erode any chance for consistency or comparability, rigor or reliability.
Mylan also notes that it has “a number of other policies in effect that govern our executive team’s behavior and that set out clear ethical expectations. Those policies, including our Code of Business Conduct and Ethics, empower the company to take a full range of disciplinary responses for any violations. And the board and the Compensation Committee are not otherwise constrained from seeking to claw back from or deny compensation to any member of the executive team in response to any breach of duties or ethics.”