The US Securities and Exchange Commission (the SEC) on June 9, 2023, approved the listing standards Nasdaq and NYSE established requiring listed issuers to adopt and comply with written clawback policies meeting the standards specified by Rule 10D-1. The listing standards will take effect on October 2, 2023. Listed issuers, including publicly-traded retailers, will have until December 1, 2023 (i.e., 60 days after October 2) to adopt a clawback policy that is compliant with the new listing standards.

For a detailed summary of the clawback rules and more information on how to comply with the listing standards, please see our prior alert, Absorbing and Reacting to the SEC’s New Clawback Rules.

The NYSE Listed Company Manual was amended on June 5, 2023, to adopt a new Section 802.01F that addresses noncompliance with the listing standards. While the originally proposed NYSE listing standards allowed listed issuers cure periods of up to 12 months after the original effective date to adopt a clawback policy, it did not address other instances of noncompliance. The amended listing standards allow listed issuers to cure periods of up to 12 months for all instances of noncompliance before being delisted. The final Nasdaq listing standards do not differ substantively from what was originally proposed.

Publicly traded retailers should begin the process of reviewing their current clawback policies to see what, if any, amendments or modifications may be necessary to bring them into compliance with the new listing standards. It may also be necessary to modify existing procedures or controls to ensure that any events triggering a potential clawback are identified in a timely fashion.