§5393 — Title 12 Banks and Banking | U.S. Code

Summary

The Board of Governors, or the Corporation if the company was not supervised by the Board, can bar a senior executive or a director from taking part in running any financial company for a time the agency decides, but not less than 2 years. The agency may do this if, before the Corporation became receiver, the person broke laws or rules, violated final orders or written conditions or agreements, took part in unsafe or unsound practices, or breached their fiduciary duty; and the person got financial gain from the conduct that helped cause the company’s failure; and the conduct showed personal dishonesty or willful/ongoing disregard for the company’s safety. The procedures in section 8(e) of the Federal Deposit Insurance Act (12 U.S.C. 1818(e)) apply. The agencies will make rules and define “senior executive.”

Title 12, §5393

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(a)The Board of Governors or, if the covered financial company was not supervised by the Board of Governors, the Corporation, may exercise the authority provided by this section.

(b)The appropriate agency described in subsection (a) may take any action authorized by subsection (c), if the agency determines that—

(1)a senior executive or a director of the covered financial company, prior to the appointment of the Corporation as receiver, has, directly or indirectly—

(A)violated—

(i)any law or regulation;

(ii)any cease-and-desist order which has become final;

(iii)any condition imposed in writing by a Federal agency in connection with any action on any application, notice, or request by such company or senior executive; or

(iv)any written agreement between such company and such agency;

(B)engaged or participated in any unsafe or unsound practice in connection with any financial company; or

(C)committed or engaged in any act, omission, or practice which constitutes a breach of the fiduciary duty of such senior executive or director;

(2)by reason of the violation, practice, or breach described in any subparagraph of paragraph (1), such senior executive or director has received financial gain or other benefit by reason of such violation, practice, or breach and such violation, practice, or breach contributed to the failure of the company; and

(3)such violation, practice, or breach—

(A)involves personal dishonesty on the part of such senior executive or director; or

(B)demonstrates willful or continuing disregard by such senior executive or director for the safety or soundness of such company.

(c)(1)The appropriate agency for a financial company, as described in subsection (a), may serve upon a senior executive or director described in subsection (b) a written notice of the intention of the agency to prohibit any further participation by such person, in any manner, in the conduct of the affairs of any financial company for a period of time determined by the appropriate agency to be commensurate with such violation, practice, or breach, provided such period shall be not less than 2 years.

(2)The due process requirements and other procedures under section 8(e) of the Federal Deposit Insurance Act (12 U.S.C. 1818(e)) shall apply to actions under this section as if the covered financial company were an insured depository institution and the senior executive or director were an institution-affiliated party, as those terms are defined in that Act [12 U.S.C. 1811 et seq.].

(d)The Corporation and the Board of Governors, in consultation with the Council, shall jointly prescribe rules or regulations to administer and carry out this section, including rules, regulations, or guidelines to further define the term senior executive for the purposes of this section.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Federal Deposit Insurance Act, referred to in subsec. (c)(2), is act Sept. 21, 1950, ch. 967, § 2, 64 Stat. 873, which is classified generally to chapter 16 (§ 1811 et seq.) of this title. The terms “insured depository institution” and “institution-affiliated party” are defined in section 3 of the Act, which is classified to section 1813 of this title. For complete classification of this Act to the Code, see

Short Title

note set out under section 1811 of this title and Tables.

Statutory Notes and Related Subsidiaries

Effective Date

Section effective 1 day after July 21, 2010, except as otherwise provided, see section 4 of Pub. L. 111–203, set out as a note under section 5301 of this title.

§5393 Ban on certain activities by senior executives and directors