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A couple months ago, I wrote about the furor over the bonuses paid to some AIG employees, which resulted in the House of Representatives passing a bill that would tax the bonuses at 90%. Although that crisis passed, it looks like another financial services company got the hint. 

According to several news reports today, Citigroup has told approximately five former executives that they are not going to receive severance payments that Citigroup is contractually obligated to make.

As reported by David Enrich in The Wall Street Journal, Citigroup has cancelled the payments because it doesn’t want to risk a public uproar, and is “wagering that the former executives will conclude that it would be publicly embarrassing for them to file lawsuits against the struggling, taxpayer-backed company seeking the money.” 

I’m not sure that Citigroup is going to win that wager. First of all, Citigroup is deciding on its own, without any pressure or demand from the government, not to make the severance payments. Thus, Citigroup is breaching the agreements of its own volition and can’t claim that the government is coercing or requiring it not to make the payments.

Second, the amounts involved are more than enough incentive for the executives to pursue litigation regardless of whether the attendant publicity embarrasses them. The severance payments total approximately $100 million, of which Citigroup has paid more than half. But that leaves a lot of money to fight over. For example, one executive, Michael Klein, was owed $21.3 million in cash on March 31 and another $7.5 million on October 5, although it isn’t clear whether Citigroup made the March payment to Klein. So, Klein is losing at least $7.5 million due to Citigroup’s decision.

I think at least some of the executives will file suit against Citigroup, assuming that Citigroup does not reconsider its decision and pay them their severance payments.

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As an update to my earlier post on the AIG bonuses, Catherine Rampell posted on TNYT's Economix blog a short time ago that the AIG employees' bonuses may still be taxed even if the employees return them, according to the concept of "constructive receipt."  She points out that whether the IRS actually taxes the bonuses depends on if they want to be "sticklers," but that its authority to do so exists.

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The furor over the AIG retention payments (a/k/a bonuses) has died down somewhat, perhaps because most of the executives involved have agreed to refund the bonuses, and perhaps because President Obama was less than enthusiastic in his support for the legislation passed by the House of Representatives that would impose a 90% tax on the bonuses.

But for your information, here are AIG’s 2008 Employee Retention Plan, a confirmation and acknowledgement, and a schedule to the master agreement, which are also located in this press release on the House Committee on Financial Services' website.   My thanks to Bob Ambrogi on Twitter (@bobambrogi) for the link.  Incidentally, Bob discusses the AIG contracts this week on his Lawyer2Lawyer podcast, "AIG Mess: Executive Contracts."

And from earlier this week, here is "Dear AIG, I Quit!", an op-ed in The New York Times by Jake DeSantis, which is the text of his resignation letter to Edward Liddy, AIG’s CEO.  DeSantis, now the former executive vice-president of AIG Financial Products, criticizes Liddy for his testimony last week regarding the bonuses:

But you also are aware that most of the employees of your financial products unit had nothing to do with the large losses. And I am disappointed and frustrated over your lack of support for us. I and many others in the unit feel betrayed that you failed to stand up for us in the face of untrue and unfair accusations from certain members of Congress last Wednesday and from the press over our retention payments, and that you didn’t defend us against the baseless and reckless comments made by the attorneys general of New York and Connecticut.

DeSantis continues with this, which makes one think that the bonuses haven't been or won't be returned as willingly as media reports have indicated:

As most of us have done nothing wrong, guilt is not a motivation to surrender our earnings. We have worked 12 long months under these contracts and now deserve to be paid as promised.  None of us should be cheated of our payments any more than a plumber should be cheated after he has fixed the pipes but a careless electrician causes a fire that burns down the house.

Many of the employees have, in the past six months, turned down job offers from more stable employers, based on A.I.G.’s assurances that the contracts would be honored.  They are now angry about having been misled by A.I.G.’s promises and are not inclined to return the money as a favor to you.

 It looks like Mr. Liddy has his work cut out for him.

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The political issue dominating news coverage is the payment of $165 million in bonuses to AIG employees, some of whom no longer work for company. 

Apparently, because the bonuses have been distributed, AIG cannot withhold the money and force its disgruntled employees to sue to obtain the bonuses.  So now, talk has turned to the government recovering the bonuses by taxing the recipients in an amount close to or equal to the amount of the bonuses. 

Such a remedy requires Congressional action, but if you've watched any cable network for more than 30 seconds during the past day, you’ll learn that there’s no shortage on Capitol Hill of eagerness to enact such legislation.  (Although as I write this, I'm hearing that Republicans in the House will oppose such a provision.)

That leads to the question of whether such legislation is constitutional.  Here is The Wall Street Journal Law Blog’s interview yesterday with constitutional law scholar and Harvard Law Professor Laurence Tribe, who addresses the government’s possible grounds for recovering the bonuses.

Today's Journal's Deal Journal has an interview with UVA Law Professor George Geis, who teaches contracts and corporate finance, about whether and how the government can recover the bonuses.

Earlier in the week, The New York Times' Room for Debate blog presented this collection of opinions from several experts on how to get the money back.

And in yesterday’s Times’ Deal Book blog, the Deal Professor, Steven M. Davidoff, analyzes AIG’s bonus contract and questions who negotiated the contract for AIG and why, considering that the bonuses weren’t tied to the employees’ performance or their group’s performance – as we have all learned to our amazement.

Finally, for a contrary point of view, Andrew Ross Sorkin, who writes the Times´Deal Book blog, argues that the bonuses should be paid because not to do so is worse than the alternative. 

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