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Lex maniac

Investigating changes in American English vocabulary over the last 40 years

Tag Archives: Wells Fargo

clawback

(1980’s | bureaucratese? legalese? financese? | “recoup,” “recover”)

No longer the sole property of sportswriters, this noun-verb complex has invaded the financial pages and legal journals in force. When I was young, you clawed your way back into a contest through determination and effort, not quitting until the game was on the line and you had a chance to win. It didn’t have to be a single game; it could happen over course of a season, as in a baseball team clawing its way back into the pennant race. It might be used in the context of an individual sport like tennis or golf, but I think it more often went with team sports. In the business world, you might claw your way to the top, but you don’t claw back your way to the top — though you might claw your way back to the top. There’s something ruthless about clawing when people do it; it requires unreasoning vigor, like a jungle cat, blindly fighting its way forward as long as it can move.

In the late seventies, the U.S. began imposing treble (i.e., threefold) damages on defendants who lost certain kinds of civil suits. The U.K. responded by passing a law of their own that gave a British person or corporation the right to recover the portion of the total damages that was not actually compensatory (in other words, the part that was multiplied on after actual damages were awarded). In both the British and American press, this was widely referred to as a “clawback provision.” The expression was much more common in the British, Canadian, and Australian press for at least a decade thereafter, and it is indubitably a Briticism.

My impression was that the expression refers mainly to something governments do, as in the Bernie Madoff case, but a corporation can do it, too; take Wells Fargo’s repossession of stock from disgraced executives in the wake of a banking scandal. I suppose that a business partner could claw back money that another partner had misused, but for the most part it seems to be something an institution does. Clawbacks normally occur when assets have been stolen or used illegitimately; when you hear the word, you can be pretty sure that there was some funny business that has been found out, and a governing body, private or public, is doing something about it. (That isn’t always true; for example, when the British government was privatizing public industries in the eighties, they decreed that a certain number of shares had to be available to British investors. In some cases, that meant “clawing back” shares bought by foreigners to make sure enough shares were available.) The government generally needs some kind of judicial ruling, but a corporation needs no more than the approval of the directors.

In truth, the new expression here is “clawback” (n.) since “claw back” (v.) has been a permissible construction for a long time. (As we saw above, “clawback” also serves as an adjective. I hope I am cold in my grave before “clawbackly” becomes standard English.) But its present sense seems to have arisen around the same time, and I wouldn’t want to state with certainty that one preceded the other, though I would guess the verb came first. It has never left legal and political contexts, or spread outward from them. Law and justice must have their own language.

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