12 U.S.C. § 5231a: Public-Private Investment…

Summary

Requires public-private investment funds set up by the federal government to follow strict conflict-of-interest and ethics rules. Fund managers must promise in writing to act in the best interest of both public and private investors, keep full records (including emails), and let the Special Inspector General of the Troubled Asset Relief Program see all books and transaction files while keeping them confidential. Each fund must report its 10 biggest holdings every quarter to the Secretary of the Treasury (the reports become public when the Secretary decides it won’t hurt the fund’s business). Funds must screen investors and tell the Secretary any investor that owns 10 percent or more (including through related entities or investment vehicles). A public-private investment fund here means a vehicle set up to buy pools of loans, securities, or assets and paid for by private money plus Treasury or Emergency Economic Stabilization Act funds. The Treasury Secretary must work with the Special Inspector General to make rules for how these funds interact with the Term Asset-Backed Securities Loan Facility and similar programs, including limits to avoid too much leverage. The Special Inspector General must report to Congress within 60 days after a program starts. An extra $15,000,000 from funds under section 115(a) of the Emergency Economic Stabilization Act is given to the Special Inspector General to use, with priority for audits or investigations of recipients of non-recourse federal loans funded by that Act to check for collusion or conflicts that might have overstated collateral. Activities of the Federal Deposit Insurance Corporation in connection with insured banks are not covered. The Treasury Secretary may issue more rules as needed.

Title 12, §5231a

Banks and Banking, Source: USLM XML via OLRC

(a)Short title

This section may be cited as the “Public-Private Investment Program Improvement and Oversight Act of 2009”.

(b)Public-Private Investment Program

(1)In general

Any program established by the Federal Government to create a public-private investment fund shall—

(A)in consultation with the Special Inspector General of the Trouble Asset Relief Program (in this section referred to as the “Special Inspector General”), impose strict conflict of interest rules on managers of public-private investment funds to ensure that securities bought by the funds are purchased in arms-length transactions, that fiduciary duties to public and private investors in the fund are not violated, and that there is full disclosure of relevant facts and financial interests (which conflict of interest rules shall be implemented by the manager of a public-private investment fund prior to such fund receiving Federal Government financing);

(B)require each public-private investment fund to make a quarterly report to the Secretary of the Treasury (in this section referred to as the “Secretary”) that discloses the 10 largest positions of such fund (which reports shall be publicly disclosed at such time as the Secretary of the Treasury determines that such disclosure will not harm the ongoing business operations of the fund);

(C)allow the Special Inspector General access to all books and records of a public-private investment fund, including all records of financial transactions in machine readable form, and the confidentiality of all such information shall be maintained by the Special Inspector General;

(D)require each manager of a public-private investment fund to retain all books, documents, and records relating to such public-private investment fund, including electronic messages;

(E)require each manager of a public-private investment fund to acknowledge, in writing, a fiduciary duty to both the public and private investors in such fund;

(F)require each manager of a public-private investment fund to develop a robust ethics policy that includes methods to ensure compliance with such policy;

(G)require strict investor screening procedures for public-private investment funds; and

(H)require each manager of a public-private fund to identify for the Secretary, on a periodic basis, each investor that, individually or together with affiliates, directly or indirectly, holds equity interests equal to at least 10 percent of the equity interest of the fund including if such interests are held in a vehicle formed for the purpose of directly or indirectly investing in the fund.

(2)Interaction between public-private investment funds and the Term-Asset Backed Securities Loan Facility

The Secretary shall consult with the Special Inspector General and shall issue regulations governing the interaction of the Public-Private Investment Program, the Term-Asset Backed Securities Loan Facility, and other similar public-private investment programs. Such regulations shall address concerns regarding the potential for excessive leverage that could result from interactions between such programs.

(3)Report

Not later than 60 days after the date of the establishment of a program described in paragraph (1), the Special Inspector General shall submit a report to Congress on the implementation of this section.

(c)Additional appropriations for the Special Inspector General

(1)In general

Of amounts made available under section 115(a) of the Emergency Economic Stabilization Act of 2008 (Public Law 110–343) [12 U.S.C. 5225(a)], $15,000,000 shall be made available to the Special Inspector General, which shall be in addition to amounts otherwise made available to the Special Inspector General.

(2)Priorities

In utilizing funds made available under this section, the Special Inspector General shall prioritize the performance of audits or investigations of recipients of non-recourse Federal loans made under any program that is funded in whole or in part by funds appropriated under the Emergency Economic Stabilization Act of 2008 [12 U.S.C. 5201 et seq.], to the extent that such priority is consistent with other aspects of the mission of the Special Inspector General. Such audits or investigations shall determine the existence of any collusion between the loan recipient and the seller or originator of the asset used as loan collateral, or any other conflict of interest that may have led the loan recipient to deliberately overstate the value of the asset used as loan collateral.

(d)Rule of construction

Notwithstanding any other provision of law, nothing in this section shall be construed to apply to any activity of the Federal Deposit Insurance Corporation in connection with insured depository institutions, as described in section 1823(c)(2)(B) of this title.

(e)Definition

In this section, the term “public-private investment fund” means a financial vehicle that is—

(1)established by the Federal Government to purchase pools of loans, securities, or assets from a financial institution described in section 101(a)(1) of the Emergency Economic Stabilization Act of 2008 (12 U.S.C. 5211(a)(1)); and

(2)funded by a combination of cash or equity from private investors and funds provided by the Secretary of the Treasury or funds appropriated under the Emergency Economic Stabilization Act of 2008 [12 U.S.C. 5201 et seq.].

(f)Omitted

(g)Regulations

The Secretary of the Treasury may prescribe such regulations or other guidance as may be necessary or appropriate to define terms or carry out the authorities or purposes of this section.

Notes & Related Subsidiaries

Editorial Notes

References in Text

The Emergency Economic Stabilization Act of 2008, referred to in subsecs. (c)(2) and (e)(2), is div. A of Pub. L. 110–343, Oct. 3, 2008, 122 Stat. 3765, which is classified principally to this chapter. For complete classification of this Act to the Code, see

Short Title

note set out under section 5201 of this title and Tables. Codification Section was enacted as part of the Helping Families Save Their Homes Act of 2009, and not as part of the Emergency Economic Stabilization Act of 2008 which comprises this chapter. Section is comprised of section 402 of Pub. L. 111–22. Subsec. (f) of section 402 of Pub. L. 111–22 amended section 5225 of this title.

§5231a Public-private Investment Program; Additional Appropriations for the Special Inspector General for the Troubled Asset Relief Program