Digging in: The Roots of a "Clawback"

"Jamie Dimon: JPMorgan Will Likely Claw Back Pay From Responsible Executives," the headline said. Dimon, JPMorgan's chief executive, was telling the Senate Banking Committee that the firm would probably seek to reclaim some pay and bonuses from those involved in the firm's $2 billion trading loss.

What a wonderful image: bankers digging in their "claws" to wrest bundles of cash from other bankers' grasps. A "clawback" is not a "giveback," which implies something much gentler, and perhaps voluntary.

The evolution of the animal "claw" to human "clawback" is actually several hundred years old, though it arrived on American shores relatively recently.

The Oxford English Dictionary says "clawback" was first used as a noun in 1549 to describe "one who claws another's back; a flatterer, sycophant, parasite, ‘toady.'" Its first financial use as a verb, the OED says, was in The Economist in 1953: "[T]ax relief was clawed back from surtax payers."

But before 2002, "clawback" as a noun or verb (with the verb usually two words) was used almost exclusively in British publications, and almost exclusively in reference to reclamation of taxes. The first reference in an American publication that shows up in Nexis is from a 1981 article in The New York Times, referring to a "so-called ‘clawback' provision, allowing British corporations fined for triple damages by a United States court to recover double damages from an adversary's assets in Britain." Still British, though with a foot (a paw?) on American shores.

Merriam-Webster's Unabridged Dictionary lists the noun "clawback" only with the sycophant definition; of the verb "claw back," M-W says: "chiefly British: to get back (as money) by strenuous or forceful means (as taxation)." The 2006 fourth edition of The American Heritage Dictionary doesn't list "clawback" at all, but the 2011 fifth edition does: "The recovery of money that has been disbursed, as by a government, pension, or company."

Webster's New World Finance and Investment Dictionary has an excellent explanation of both the definition and etymology of "clawback" as Dimon used it:

"A clawback requires venture capitalists to refund fees to their investors if it turns out that the venture capitalists received more than their 20 percent share of a fund's overall profits. Clawbacks became common in 2002, occurring when a venture capitalist took its 20 percent share of a fund's early investment success, but the fund later lost money."

Most American uses of "clawback" now are related to getting back money from the people who profited even though the investments they recommended or guided ended up losing money. Many "clawback" suits, for example, seek to reclaim money from investors who profited from the Madoff Ponzi scheme, to defray the losses of others.

But the tax-related use of "clawback" has also surged in the United States: Many municipalities now have "clawback" provisions when they grant tax incentives to companies; if a company does not fulfill its part of the bargain, a municipality can seek to "claw back" some of the lost taxes.

A lesson for Wall Street, perhaps, more bear clawish than bullish.