The US Securities and Exchange Commission’s attempt to use – for the first time – a “clawback” law against an executive who is not accused of any wrongdoing marks a new hard-hitting approach at an agency under pressure to restore its reputation.

Until now, the SEC used the provision in the 2002 Sarbanes-Oxley law to go only after individuals it had accused of being involved in fraud and, even then, made its first settlement invoking that law some five years after it was adopted.

Last week’s novel move has also highlighted corporate accountability at a time when companies are facing tougher scrutiny on pay policies. The outcome of the case, which will test the SEC’s aggressiveness, could have widespread implications.

“They are taking this tool and interpreting it aggressively. If they are successful, I expect to see them using it often and I bet it would change the way CEOs and CFOs behave when it comes to restatements, though it may also make people even more reluctant to take those jobs,” said Nader Salehi, a partner at Bingham, the law firm.

The clawback provision in Sarbanes-Oxley, passed in the wake of massive accounting frauds at Enron, Worldcom and other companies, requires executives to return performance-based pay and bonuses as well as stock sale profits if a company is forced to issue an accounting restatement “as a result of misconduct”.

Last week, the regulator asked a court to order the return of $4m (€2.82m, £2.43m) paid to Maynard Jenkins, former chief executive of CSK Auto, whose profits were allegedly inflated by accounting fraud committed by others: Mr Jenkins was not involved.

Mr Jenkins’ lawyer, John Spiegel, of Munger Tolles & Olson, said: “We look forward to demonstrating to the court that the law does not permit such overreaching against an admittedly innocent person.”

But Robert Khuzami, SEC enforcement director, said costs of misconduct “need not be borne by shareholders alone”, adding that the personal compensation received by chief executives while the companies they serve engage in wrongdoing can be clawed back.

“That was the intent of this provision of Sarbanes-Oxley, and the SEC needs to enforce it …The SEC needs to demonstrate real toughness in cases where restatements are required,” said Harvey Pitt, SEC chairman from 2001 to 2003.

Yet it is far from clear whether the agency will be successful. The structure and language of the provision, known as Section 304, are ambiguous and have already prompted debate among lawyers.

Some questions, such as whether the provision could be used by private litigants, were partly resolved when courts ruled that only the SEC could enforce it. Private lawsuits invoking the provision have continued to be filed nonetheless.

“It has always been an open question whether the SEC would use this weapon against a CEO or CFO who did not personally engage in misconduct, and whether such an aggressive claim would be sustained in litigation,” wrote Wachtell, Lipton, the big Wall Street law firm, in a memo criticising the SEC action.

“They are basically going for the strict liability standard,” said Mr Salehi. The SEC has interpreted every ambiguity in the law in the “most aggressive way possible and saying this is the way the ambiguities are going to be resolved”.

Whatever the court’s decision, the SEC move serves as a warning to executives, said Charles Elson, director of the corporate governance centre at the University of Delaware. “Even the threat to do it may have an effect because it will make individuals at companies more vigilant.”

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