Page:United States Statutes at Large Volume 104 Part 1.djvu/976

 104 STAT. 942 PUBLIC LAW 101-429—OCT. 15, 1990 to any material fact, or has omitted to state in any such registration statement, application, or report any material fact which was required to be stated therein; and that such penalty is in the public interest. "(2) MAXIMUM AMOUNT OF PENALTY.— "(A) FIRST TIER.— The maximum amount of penalty for each act or omission described in paragraph (1) shall be $5,000 for a natural person or $50,000 for any other person. "(B) SECOND TIER. —Notwithstanding subparagraph (A), 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 paragraph (1) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement. " (C) THIRD TIER. — Notwithstanding subparagraphs (A) and (B), 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— "(i) the act or omission described in paragraph (1) involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement; and "(ii) 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. "(3) DETERMINATION OF PUBLIC INTEREST. —In considering under this section whether a penalty is in the public interest, the Commission may consider— "(A) whether the act or omission for which such penalty is assessed involved fraud, deceit, manipulation, or deliberate or reckless disregard of a regulatory requirement; "(B) the harm to other persons resulting either directly or indirectly from such act or omission; "(C) the extent to which any person was unjustly enriched, taking into account any restitution made to persons injured by such behavior; "(D) 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 203(e)(2) of the Investment Advisers Act of 1940; "(E) the need to deter such person and other persons from committing such acts or omissions; and "(F) such other matters as justice may require. " (4) EVIDENCE CONCERNING ABILITY TO PAY. —In any proceeding in which the Commission may impose a penalty under this section, a respondent may present evidence of the respondent's ability to pay such penalty. The Commission 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

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