Page:United States Statutes at Large Volume 104 Part 1.djvu/972

 104 STAT. 938 PUBLIC LAW 101-429—OCT. 15, 1990 "(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) whether such person previously has been found by the (Dommission, 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 15(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 coUectability 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 AN ORDER REQUIRING AN ACCOUNTING AND DISGORGEMENT. —In any proceeding in which the Commission or the appropriate regulatory agency may impose a pengilty 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.". (b) CONFORMING AMENDMENT.—The heading of section 21A of this title (15 U.S.C. 78u-l) is amended to read as follows:

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