15 U.S.C. § 78u–2 | Civil remedies in administrative proceedings

(a)

Commission authority to assess money penalties

(1)

In general

ooooooIn any proceeding instituted pursuant to sections 78(b)(4), 78(b)(6), 78–6, 78–4, 78–5, 78–7, or 78q–1 of this title against any person, the Commission or the appropriate regulatory agency may impose a civil penalty if it finds, on the record after notice and opportunity for hearing, that such penalty is in the public interest and that such person—

(A)

15 U.S.C. 77a 15 U.S.C. 80a–1 15 U.S.C. 80b–1 has willfully violated any provision of the Securities Act of 1933 [ et seq.], the Investment Company Act of 1940 [ et seq.], the Investment Advisers Act of 1940 [ et seq.], or this chapter, or the rules or regulations thereunder, or the rules of the Municipal Securities Rulemaking Board;

(B)

has willfully aided, abetted, counseled, commanded, induced, or procured such a violation by any other person;

(C)

has willfully made or caused to be made in any application for registration or report required to be filed with the Commission or with any other appropriate regulatory agency under this chapter, or in any proceeding before the Commission with respect to registration, any statement which was, at the time and in the light of the circumstances under which it was made, false or misleading with respect to any material fact, or has omitted to state in any such application or report any material fact which is required to be stated therein; or

(D)

1 So in original. The semicolon probably should be a period.

has failed reasonably to supervise, within the meaning of section 78(b)(4)(E) of this title, with a view to preventing violations of the provisions of such statutes, rules and regulations, another person who commits such a violation, if such other person is subject to his supervision; 

(2)

Cease-and-desist proceedings

section 78u–3 of this titleIn any proceeding instituted under against any person, the Commission may impose a civil penalty, if the Commission finds, on the record after notice and opportunity for hearing, that such person—

(A)

is violating or has violated any provision of this chapter, or any rule or regulation issued under this chapter; or

(B)

is or was a cause of the violation of any provision of this chapter, or any rule or regulation issued under this chapter.

(b)

Maximum amount of penalty

(1)

First tier

The maximum amount of penalty for each act or omission described in subsection (a) shall be $5,000 for a natural person or $50,000 for any other person.

(2)

Second tier

Notwithstanding paragraph (1), the maximum amount of penalty for each such act or omission shall be $50,000 for a natural person or $250,000 for any other person if the act or omission described in subsection (a) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement.

(3)

Third tier

Notwithstanding paragraphs (1) and (2), the maximum amount of penalty for each such act or omission shall be $100,000 for a natural person or $500,000 for any other person if—

(A)

the act or omission described in subsection (a) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement; and

(B)

such act or omission directly or indirectly resulted in substantial losses or created a significant risk of substantial losses to other persons or resulted in substantial pecuniary gain to the person who committed the act or omission.

(c)

Determination of public interest

In considering under this section whether a penalty is in the public interest, the Commission or the appropriate regulatory agency may consider—

(1)

whether the act or omission for which such penalty is assessed involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement;

(2)

the harm to other persons resulting either directly or indirectly from such act or omission;

(3)

the extent to which any person was unjustly enriched, taking into account any restitution made to persons injured by such behavior;

(4)

o whether such person previously has been found by the Commission, another appropriate regulatory agency, or a self-regulatory organization to have violated the Federal securities laws, State securities laws, or the rules of a self-regulatory organization, has been enjoined by a court of competent jurisdiction from violations of such laws or rules, or has been convicted by a court of competent jurisdiction of violations of such laws or of any felony or misdemeanor described in section 78(b)(4)(B) of this title;

(5)

the need to deter such person and other persons from committing such acts or omissions; and

(6)

such other matters as justice may require.

(d)

Evidence concerning ability to pay

In any proceeding in which the Commission or the appropriate regulatory agency may impose a penalty under this section, a respondent may present evidence of the respondent’s ability to pay such penalty. The Commission or the appropriate regulatory agency may, in its discretion, consider such evidence in determining whether such penalty is in the public interest. Such evidence may relate to the extent of such person’s ability to continue in business and the collectability of a penalty, taking into account any other claims of the United States or third parties upon such person’s assets and the amount of such person’s assets.

(e)

Authority to enter order requiring accounting and disgorgement

In any proceeding in which the Commission or the appropriate regulatory agency may impose a penalty under this section, the Commission or the appropriate regulatory agency may enter an order requiring accounting and disgorgement, including reasonable interest. The Commission is authorized to adopt rules, regulations, and orders concerning payments to investors, rates of interest, periods of accrual, and such other matters as it deems appropriate to implement this subsection.

(f)

Security-based swaps

(1)

Clearing agency

section 78c–3 of this title section 78c–3 of this titleAny clearing agency that knowingly or recklessly evades or participates in or facilitates an evasion of the requirements of shall be liable for a civil money penalty in twice the amount otherwise available for a violation of .

(2)

Security-based swap dealer or major security-based swap participant

section 78c–3 of this title section 78c–3 of this titleAny security-based swap dealer or major security-based swap participant that knowingly or recklessly evades or participates in or facilitates an evasion of the requirements of shall be liable for a civil money penalty in twice the amount otherwise available for a violation of .

June 6, 1934, ch. 404 Pub. L. 101–429, title II, § 202(a)Oct. 15, 1990104 Stat. 937 Pub. L. 107–204, title V, § 501(b)July 30, 2002116 Stat. 793 Pub. L. 109–291, § 4(b)(1)(B)Sept. 29, 2006120 Stat. 1337 Pub. L. 111–203, title VII, § 773July 21, 2010124 Stat. 1802 (, title I, § 21B, as added , , ; amended , , ; , , ; , title IX, § 929P(a)(2), , , 1863.)

Editorial Notes

References in Text

act May 27, 1933, ch. 38, title I 48 Stat. 74 section 77a of this titleThe Securities Act of 1933, referred to in subsec. (a)(1)(A), is , , which is classified generally to subchapter I (§ 77a et seq.) of chapter 2A of this title. For complete classification of this Act to the Code, see and Tables.

act Aug. 22, 1940, ch. 686 54 Stat. 789 section 80a–51 of this titleThe Investment Company Act of 1940, referred to in subsec. (a)(1)(A), is title I of , , which is classified generally to subchapter I (§ 80a–1 et seq.) of chapter 2D of this title. For complete classification of this Act to the Code, see and Tables.

act Aug. 22, 1940, ch. 686 54 Stat. 847 section 80b–20 of this titleThe Investment Advisers Act of 1940, referred to in subsec. (a)(1)(A), is title II of , , which is classified generally to subchapter II (§ 80b–1 et seq.) of chapter 2D of this title. For complete classification of this Act to the Code, see and Tables.

section 78a of this titleThis chapter, referred to in subsec. (a)(1)(A), (C), (2), was in the original “this title”. See References in Text note set out under .

Amendments

Pub. L. 111–203, § 929P(a)(2)2010—Subsec. (a). , designated existing provisions as par. (1) and inserted heading, inserted “that such penalty is in the public interest and” before “that such person—” in introductory provisions, redesignated former pars. (1) to (4) as subpars. (A) to (D), respectively, of par. (1) and realigned margins, struck out concluding provisions which read “and that such penalty is in the public interest.”, and added par. (2).

Pub. L. 111–203, § 773Subsec. (f). , added subsec. (f).

Pub. L. 109–291oo2006—Subsec. (a). inserted “78–7,” after “78–5,” in introductory provisions.

Pub. L. 107–204oo2002—Subsec. (a). inserted “78–6,” before “78–4,” in introductory provisions.

Statutory Notes and Related Subsidiaries

Effective Date of 2010 Amendment

section 929P(a)(2) of Pub. L. 111–203July 21, 2010section 4 of Pub. L. 111–203 section 5301 of Title 12Amendment by effective 1 day after , except as otherwise provided, see , set out as an Effective Date note under , Banks and Banking.

section 773 of Pub. L. 111–203July 21, 2010Pub. L. 111–203 section 774 of Pub. L. 111–203 section 77b of this titleAmendment by effective on the later of 360 days after , or, to the extent a provision of subtitle B (§§ 761–774) of title VII of requires a rulemaking, not less than 60 days after publication of the final rule or regulation implementing such provision of subtitle B, see , set out as a note under .

Effective Date

Oct. 15, 1990Pub. L. 101–429 section 77g of this titleSection effective , with provisions relating to civil penalties and accounting and disgorgement, see section 1(c)(1), (2) of , set out in an Effective Date of 1990 Amendment note under .

Section text and notes