H.R. 3641 Text - Reported in House - 116th Congress (2019-2020)

Union Calendar No. 331

116th CONGRESS
2d Session

H. R. 3641

[Report No. 116–410]

To enhance civil penalties under the Federal securities laws, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES

July 9, 2019

Ms. Porter introduced the following bill; which was referred to the Committee on Financial Services

February 27, 2020

Reported with an amendment; committed to the Committee of the Whole House on the State of the Union and ordered to be printed

[Strike out all after the enacting clause and insert the part printed in italic]

[For text of introduced bill, see copy of bill as introduced on July 9, 2019]

A BILL

To enhance civil penalties under the Federal securities laws, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. Short title.

This Act may be cited as the “Stronger Enforcement of Civil Penalties Act of 2019”.

SEC. 2. Updated civil money penalties for securities laws violations.

(a) Securities Act of 1933.—

(1) MONEY PENALTIES IN ADMINISTRATIVE ACTIONS.—Section 8A(g)(2) of the Securities Act of 1933 (15 U.S.C. 77h–1(g)(2)) is amended—

(A) in subparagraph (A)—

(i) by striking “$7,500” and inserting “$10,000”; and

(ii) by striking “$75,000” and inserting “$100,000”;

(B) in subparagraph (B)—

(i) by striking “$75,000” and inserting “$100,000”; and

(ii) by striking “$375,000” and inserting “$500,000”; and

(C) by striking subparagraph (C) and inserting the following:

“(C) THIRD TIER.—

“(i) IN GENERAL.—Notwithstanding subparagraphs (A) and (B), for a third tier act or omission, the amount of penalty for each such act or omission shall not exceed the greater of—

“(I) $1,000,000 for a natural person or $10,000,000 for any other person;

“(II) 3 times the gross amount of pecuniary gain to the person who committed the act or omission; or

“(III) the amount of losses incurred by victims as a result of the act or omission.

“(ii) THIRD TIER ACT OR OMISSION.—For the purposes of this subparagraph, the term ‘third tier act or omission’ means an act or omission described in paragraph (1) that—

“(I) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement; and

“(II) directly or indirectly—

“(aa) resulted in substantial losses to other persons;

“(bb) created a significant risk of substantial losses to other persons; or

“(cc) resulted in substantial pecuniary gain to the person who committed the act or omission.”.

(2) MONEY PENALTIES IN CIVIL ACTIONS.—Section 20(d)(2) of the Securities Act of 1933 (15 U.S.C. 77t(d)(2)) is amended—

(A) in subparagraph (A)—

(i) by striking “$5,000” and inserting “$10,000”; and

(ii) by striking “$50,000” and inserting “$100,000”;

(B) in subparagraph (B)—

(i) by striking “$50,000” and inserting “$100,000”; and

(ii) by striking “$250,000” and inserting “$500,000”; and

(C) by striking subparagraph (C) and inserting the following:

“(C) THIRD TIER.—

“(i) IN GENERAL.—Notwithstanding subparagraphs (A) and (B), for a third tier violation, the amount of penalty for each violation shall not exceed the greater of—

“(I) $1,000,000 for a natural person or $10,000,000 for any other person;

“(II) 3 times the gross amount of pecuniary gain to the person who committed the violation; or

“(III) the amount of losses incurred by victims as a result of the violation.

“(ii) THIRD TIER VIOLATION.—For the purposes of this subparagraph, the term ‘third tier violation’ means a violation described in paragraph (1) that—

“(I) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement; and

“(II) directly or indirectly—

“(aa) resulted in substantial losses to other persons;

“(bb) created a significant risk of substantial losses to other persons; or

“(cc) resulted in substantial pecuniary gain to the person who committed the violation.”.

(b) Securities Exchange Act of 1934.—

(1) MONEY PENALTIES IN CIVIL ACTIONS.—Section 21(d)(3)(B) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(d)(3)(B)) is amended—

(A) in clause (i)—

(i) by striking “$5,000” and inserting “$10,000”; and

(ii) by striking “$50,000” and inserting “$100,000”;

(B) in clause (ii)—

(i) by striking “$50,000” and inserting “$100,000”; and

(ii) by striking “$250,000” and inserting “$500,000”; and

(C) by striking clause (iii) and inserting the following:

“(iii) THIRD TIER.—

“(I) IN GENERAL.—Notwithstanding clauses (i) and (ii), for a third tier violation, the amount of penalty for each such violation shall not exceed the greater of—

“(aa) $1,000,000 for a natural person or $10,000,000 for any other person;

“(bb) 3 times the gross amount of pecuniary gain to the person who committed the violation; or

“(cc) the amount of losses incurred by victims as a result of the violation.

“(II) THIRD TIER VIOLATION.—For the purposes of this clause, the term ‘third tier violation’ means a violation described in subparagraph (A) that—

“(aa) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement; and

“(bb) directly or indirectly—
“(AA) resulted in substantial losses to other persons;
“(BB) created a significant risk of substantial losses to other persons; or
“(CC) resulted in substantial pecuniary gain to the person who committed the violation.”.

(2) MONEY PENALTIES IN ADMINISTRATIVE ACTIONS.—Section 21B(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78u–2(b)) is amended—

(A) in paragraph (1)—

(i) by striking “$5,000” and inserting “$10,000”; and

(ii) by striking “$50,000” and inserting “$100,000”;

(B) in paragraph (2)—

(i) by striking “$50,000” and inserting “$100,000”; and

(ii) by striking “$250,000” and inserting “$500,000”; and

(C) by striking paragraph (3) and inserting the following:

“(3) THIRD TIER.—

“(A) IN GENERAL.—Notwithstanding paragraphs (1) and (2), for a third tier act or omission, the amount of penalty for each such act or omission shall not exceed the greater of—

“(i) $1,000,000 for a natural person or $10,000,000 for any other person;

“(ii) 3 times the gross amount of pecuniary gain to the person who committed the act or omission; or

“(iii) the amount of losses incurred by victims as a result of the act or omission.

“(B) THIRD TIER ACT OR OMISSION.—For the purposes of this paragraph, the term ‘third tier act or omission’ means an act or omission described in paragraph (1) that—

“(i) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement; and

“(ii) directly or indirectly—

“(I) resulted in substantial losses to other persons;

“(II) created a significant risk of substantial losses to other persons; or

“(III) resulted in substantial pecuniary gain to the person who committed the act or omission.”.

(c) Investment Company Act of 1940.—

(1) MONEY PENALTIES IN ADMINISTRATIVE ACTIONS.—Section 9(d)(2) of the Investment Company Act of 1940 (15 U.S.C. 80a–9(d)(2)) is amended—

(A) in subparagraph (A)—

(i) by striking “$5,000” and inserting “$10,000”; and

(ii) by striking “$50,000” and inserting “$100,000”;

(B) in subparagraph (B)—

(i) by striking “$50,000” and inserting “$100,000”; and

(ii) by striking “$250,000” and inserting “$500,000”; and

(C) by striking subparagraph (C) and inserting the following:

“(C) THIRD TIER.—

“(i) IN GENERAL.—Notwithstanding subparagraphs (A) and (B), for a third tier act or omission, the amount of penalty for each such act or omission shall not exceed the greater of—

“(I) $1,000,000 for a natural person or $10,000,000 for any other person;

“(II) 3 times the gross amount of pecuniary gain to the person who committed the act or omission; or

“(III) the amount of losses incurred by victims as a result of the act or omission.

“(ii) THIRD TIER ACT OR OMISSION.—For the purposes of this subparagraph, the term ‘third tier act or omission’ means an act or omission described in paragraph (1) that—

“(I) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement; and

“(II) directly or indirectly—

“(aa) resulted in substantial losses to other persons;

“(bb) created a significant risk of substantial losses to other persons; or

“(cc) resulted in substantial pecuniary gain to the person who committed the act or omission.”.

(2) MONEY PENALTIES IN CIVIL ACTIONS.—Section 42(e)(2) of the Investment Company Act of 1940 (15 U.S.C. 80a–41(e)(2)) is amended—

(A) in subparagraph (A)—

(i) by striking “$5,000” and inserting “$10,000”; and

(ii) by striking “$50,000” and inserting “$100,000”;

(B) in subparagraph (B)—

(i) by striking “$50,000” and inserting “$100,000”; and

(ii) by striking “$250,000” and inserting “$500,000”; and

(C) by striking subparagraph (C) and inserting the following:

“(C) THIRD TIER.—

“(i) IN GENERAL.—Notwithstanding subparagraphs (A) and (B), for a third tier violation, the amount of penalty for each such violation shall not exceed the greater of—

“(I) $1,000,000 for a natural person or $10,000,000 for any other person;

“(II) 3 times the gross amount of pecuniary gain to the person who committed the violation; or

“(III) the amount of losses incurred by victims as a result of the violation.

“(ii) THIRD TIER VIOLATION.—For the purposes of this subparagraph, the term ‘third tier violation’ means a violation described in paragraph (1) that—

“(I) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement; and

“(II) directly or indirectly—

“(aa) resulted in substantial losses to other persons;

“(bb) created a significant risk of substantial losses to other persons; or

“(cc) resulted in substantial pecuniary gain to the person who committed the violation.”.

(d) Investment Advisers Act of 1940.—

(1) MONEY PENALTIES IN ADMINISTRATIVE ACTIONS.—Section 203(i)(2) of the Investment Advisers Act of 1940 (15 U.S.C. 80b–3(i)(2)) is amended—

(A) in subparagraph (A)—

(i) by striking “$5,000” and inserting “$10,000”; and

(ii) by striking “$50,000” and inserting “$100,000”;

(B) in subparagraph (B)—

(i) by striking “$50,000” and inserting “$100,000”; and

(ii) by striking “$250,000” and inserting “$500,000”; and

(C) by striking subparagraph (C) and inserting the following:

“(C) THIRD TIER.—

“(i) IN GENERAL.—Notwithstanding subparagraphs (A) and (B), for a third tier act or omission, the amount of penalty for each such act or omission shall not exceed the greater of—

“(I) $1,000,000 for a natural person or $10,000,000 for any other person;

“(II) 3 times the gross amount of pecuniary gain to the person who committed the act or omission; or

“(III) the amount of losses incurred by victims as a result of the act or omission.

“(ii) THIRD TIER ACT OR OMISSION.—For the purposes of this subparagraph, the term ‘third tier act or omission’ means an act or omission described in paragraph (1) that—

“(I) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement; and

“(II) directly or indirectly—

“(aa) resulted in substantial losses to other persons;

“(bb) created a significant risk of substantial losses to other persons; or

“(cc) resulted in substantial pecuniary gain to the person who committed the act or omission.”.

(2) MONEY PENALTIES IN CIVIL ACTIONS.—Section 209(e)(2) of the Investment Advisers Act of 1940 (15 U.S.C. 80b–9(e)(2)) is amended—

(A) in subparagraph (A)—

(i) by striking “$5,000” and inserting “$10,000”; and

(ii) by striking “$50,000” and inserting “$100,000”;

(B) in subparagraph (B)—

(i) by striking “$50,000” and inserting “$100,000”; and

(ii) by striking “$250,000” and inserting “$500,000”; and

(C) by striking subparagraph (C) and inserting the following:

“(C) THIRD TIER.—

“(i) IN GENERAL.—Notwithstanding subparagraphs (A) and (B), for a third tier violation, the amount of penalty for each such violation shall not exceed the greater of—

“(I) $1,000,000 for a natural person or $10,000,000 for any other person;

“(II) 3 times the gross amount of pecuniary gain to the person who committed the violation; or

“(III) the amount of losses incurred by victims as a result of the violation.

“(ii) THIRD TIER VIOLATION.—For the purposes of this subparagraph, the term ‘third tier violation’ means a violation described in paragraph (1) that—

“(I) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement; and

“(II) directly or indirectly—

“(aa) resulted in substantial losses to other persons;

“(bb) created a significant risk of substantial losses to other persons; or

“(cc) resulted in substantial pecuniary gain to the person who committed the violation.”.

SEC. 3. Penalties for recidivists.

(a) Securities Act of 1933.—

(1) CEASE-AND-DESIST PROCEEDINGS.—Section 8A(g)(2) of the Securities Act of 1933 (15 U.S.C. 77h–1(g)(2)) is amended by adding at the end the following:

“(D) FOURTH TIER.—Notwithstanding subparagraphs (A), (B), and (C), the maximum amount of penalty for each such act or omission shall be 3 times the otherwise applicable amount in such subparagraphs if, within the 5-year period preceding such act or omission, the person who committed the act or omission was criminally convicted for securities fraud or became subject to a judgment or order imposing monetary, equitable, or administrative relief in any Commission action alleging fraud by that person.”.

(2) INJUNCTIONS AND PROSECUTION OF OFFENSES.—Section 20(d)(2) of the Securities Act of 1933 (15 U.S.C. 77t(d)(2)) is amended by adding at the end the following:

“(D) FOURTH TIER.—Notwithstanding subparagraphs (A), (B), and (C), the maximum amount of penalty for each such violation shall be 3 times the otherwise applicable amount in such subparagraphs if, within the 5-year period preceding such violation, the defendant was criminally convicted for securities fraud or became subject to a judgment or order imposing monetary, equitable, or administrative relief in any Commission action alleging fraud by that defendant.”.

(b) Securities exchange Act of 1934.—

(1) CIVIL ACTIONS.—Section 21(d)(3)(B) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(d)(3)(B)) is amended by adding at the end the following:

“(iv) FOURTH TIER.—Notwithstanding clauses (i), (ii), and (iii), the maximum amount of penalty for each such violation shall be 3 times the otherwise applicable amount in such clauses if, within the 5-year period preceding such violation, the defendant was criminally convicted for securities fraud or became subject to a judgment or order imposing monetary, equitable, or administrative relief in any Commission action alleging fraud by that defendant.”.

(2) ADMINISTRATIVE PROCEEDINGS.—Section 21B(b) of the Securities Exchange Act of 1934 (15 U.S.C. 78u–2(b)) is amended by adding at the end the following:

“(4) FOURTH TIER.—Notwithstanding paragraphs (1), (2), and (3), the maximum amount of penalty for each such act or omission shall be 3 times the otherwise applicable amount in such paragraphs if, within the 5-year period preceding such act or omission, the person who committed the act or omission was criminally convicted for securities fraud or became subject to a judgment or order imposing monetary, equitable, or administrative relief in any Commission action alleging fraud by that person.”.

(c) Investment company Act of 1940.—

(1) INELIGIBILITY OF CERTAIN UNDERWRITERS AND AFFILIATES.—Section 9(d)(2) of the Investment Company Act of 1940 (15 U.S.C. 80a–9(d)(2)) is amended by adding at the end the following:

“(D) FOURTH TIER.—Notwithstanding subparagraphs (A), (B), and (C), the maximum amount of penalty for each such act or omission shall be 3 times the otherwise applicable amount in such subparagraphs if, within the 5-year period preceding such act or omission, the person who committed the act or omission was criminally convicted for securities fraud or became subject to a judgment or order imposing monetary, equitable, or administrative relief in any Commission action alleging fraud by that person.”.

(2) ENFORCEMENT OF CERTAIN ACTIONS.—Section 42(e)(2) of the Investment Company Act of 1940 (15 U.S.C. 80a–41(e)(2)) is amended by adding at the end the following:

“(D) FOURTH TIER.—Notwithstanding subparagraphs (A), (B), and (C), the maximum amount of penalty for each such violation shall be 3 times the otherwise applicable amount in such subparagraphs if, within the 5-year period preceding such violation, the defendant was criminally convicted for securities fraud or became subject to a judgment or order imposing monetary, equitable, or administrative relief in any Commission action alleging fraud by that defendant.”.

(d) Investment advisers Act of 1940.—The Investment Advisers Act of 1940 (15 U.S.C. 80b–1 et seq.) is amended—

(1) in section 203(i)(2) (15 U.S.C. 80b–3(i)(2)), by adding at the end the following:

“(D) FOURTH TIER.—Notwithstanding subparagraphs (A), (B), and (C), the maximum amount of penalty for each such act or omission shall be 3 times the otherwise applicable amount in such subparagraphs if, within the 5-year period preceding such act or omission, the person who committed the act or omission was criminally convicted for securities fraud or became subject to a judgment or order imposing monetary, equitable, or administrative relief in any Commission action alleging fraud by that person.”; and

(2) in section 209(e)(2) (15 U.S.C. 80b–9(e)(2)) by adding at the end the following:

“(D) FOURTH TIER.—Notwithstanding subparagraphs (A), (B), and (C), the maximum amount of penalty for each such violation shall be 3 times the otherwise applicable amount in such subparagraphs if, within the 5-year period preceding such violation, the defendant was criminally convicted for securities fraud or became subject to a judgment or order imposing monetary, equitable, or administrative relief in any Commission action alleging fraud by that defendant.”.

SEC. 4. Violations of injunctions and bars.

(a) Securities Act of 1933.—Section 20(d) of the Securities Act of 1933 (15 U.S.C. 77t(d)) is amended—

(1) in paragraph (1), by inserting after “the rules or regulations thereunder,” the following: “a Federal court injunction or a bar obtained or entered by the Commission under this title,”; and

(2) by striking paragraph (4) and inserting the following:

“(4) SPECIAL PROVISIONS RELATING TO A VIOLATION OF AN INJUNCTION OR CERTAIN ORDERS.—

“(A) IN GENERAL.—Each separate violation of an injunction or order described in subparagraph (B) shall be a separate offense, except that in the case of a violation through a continuing failure to comply with such injunction or order, each day of the failure to comply with the injunction or order shall be deemed a separate offense.

“(B) INJUNCTIONS AND ORDERS.—Subparagraph (A) shall apply with respect to any action to enforce—

“(i) a Federal court injunction obtained pursuant to this title;

“(ii) an order entered or obtained by the Commission pursuant to this title that bars, suspends, places limitations on the activities or functions of, or prohibits the activities of a person; or

“(iii) a cease-and-desist order entered by the Commission pursuant to section 8A.”.

(b) Securities exchange Act of 1934.—Section 21(d)(3) of the Securities Exchange Act of 1934 (15 U.S.C. 78u(d)(3)) is amended—

(1) in subparagraph (A), by inserting after “the rules or regulations thereunder,” the following: “a Federal court injunction or a bar obtained or entered by the Commission under this title,”; and

(2) by striking subparagraph (D) and inserting the following:

“(D) SPECIAL PROVISIONS RELATING TO A VIOLATION OF AN INJUNCTION OR CERTAIN ORDERS.—

“(i) IN GENERAL.—Each separate violation of an injunction or order described in clause (ii) shall be a separate offense, except that in the case of a violation through a continuing failure to comply with such injunction or order, each day of the failure to comply with the injunction or order shall be deemed a separate offense.

“(ii) INJUNCTIONS AND ORDERS.—Clause (i) shall apply with respect to an action to enforce—

“(I) a Federal court injunction obtained pursuant to this title;

“(II) an order entered or obtained by the Commission pursuant to this title that bars, suspends, places limitations on the activities or functions of, or prohibits the activities of a person; or

“(III) a cease-and-desist order entered by the Commission pursuant to section 21C.”.

(c) Investment company Act of 1940.—Section 42(e) of the Investment Company Act of 1940 (15 U.S.C. 80a–41(e)) is amended—

(1) in paragraph (1), by inserting after “the rules or regulations thereunder,” the following: “a Federal court injunction or a bar obtained or entered by the Commission under this title,”; and

(2) by striking paragraph (4) and inserting the following:

“(4) SPECIAL PROVISIONS RELATING TO A VIOLATION OF AN INJUNCTION OR CERTAIN ORDERS.—

“(A) IN GENERAL.—Each separate violation of an injunction or order described in subparagraph (B) shall be a separate offense, except that in the case of a violation through a continuing failure to comply with such injunction or order, each day of the failure to comply with the injunction or order shall be deemed a separate offense.

“(B) INJUNCTIONS AND ORDERS.—Subparagraph (A) shall apply with respect to any action to enforce—

“(i) a Federal court injunction obtained pursuant to this title;

“(ii) an order entered or obtained by the Commission pursuant to this title that bars, suspends, places limitations on the activities or functions of, or prohibits the activities of a person; or

“(iii) a cease-and-desist order entered by the Commission pursuant to section 9(f).”.

(d) Investment advisers Act of 1940.—Section 209(e) of the Investment Advisers Act of 1940 (15 U.S.C. 80b–9(e)) is amended—

(1) in paragraph (1), by inserting after “the rules or regulations thereunder,” the following: “a Federal court injunction or a bar obtained or entered by the Commission under this title,”; and

(2) by striking paragraph (4) and inserting the following:

“(4) SPECIAL PROVISIONS RELATING TO A VIOLATION OF AN INJUNCTION OR CERTAIN ORDERS.—

“(A) IN GENERAL.—Each separate violation of an injunction or order described in subparagraph (B) shall be a separate offense, except that in the case of a violation through a continuing failure to comply with such injunction or order, each day of the failure to comply with the injunction or order shall be deemed a separate offense.

“(B) INJUNCTIONS AND ORDERS.—Subparagraph (A) shall apply with respect to any action to enforce—

“(i) a Federal court injunction obtained pursuant to this title;

“(ii) an order entered or obtained by the Commission pursuant to this title that bars, suspends, places limitations on the activities or functions of, or prohibits the activities of a person; or

“(iii) a cease-and-desist order entered by the Commission pursuant to section 203(k).”.

Union Calendar No. 331

116th CONGRESS
2d Session

H. R. 3641

[Report No. 116–410]

A BILL

To enhance civil penalties under the Federal securities laws, and for other purposes.

February 27, 2020

Reported with an amendment; committed to the Committee of the Whole House on the State of the Union and ordered to be printed