Securities Lawyer's Deskbook
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Sarbanes-Oxley Act of 2002

Section 308 -- Fair Funds for Investors

  1. Civil Penalties Added to Disgorgement Funds for the Relief of Victims. If in any judicial or administrative action brought by the Commission under the securities laws (as such term is defined in section 3(a)(47) of the Securities Exchange Act of 1934) the Commission obtains an order requiring disgorgement against any person for a violation of such laws or the rules or regulations thereunder, or such person agrees in settlement of any such action to such disgorgement, and the Commission also obtains pursuant to such laws a civil penalty against such person, the amount of such civil penalty shall, on the motion or at the direction of the Commission, be added to and become part of the disgorgement fund for the benefit of the victims of such violation.

  2. Acceptance of Additional Donations. The Commission is authorized to accept, hold, administer, and utilize gifts, bequests and devises of property, both real and personal, to the United States for a disgorgement fund described in subsection (a). Such gifts, bequests, and devises of money and proceeds from sales of other property received as gifts, bequests, or devises shall be deposited in the disgorgement fund and shall be available for allocation in accordance with subsection (a).

  3. Study Required.

    1. Subject of study. The Commission shall review and analyze--

      1. enforcement actions by the Commission over the five years preceding the date of the enactment of this Act that have included proceedings to obtain civil penalties or disgorgements to identify areas where such proceedings may be utilized to efficiently, effectively, and fairly provide restitution for injured investors; and

      2. other methods to more efficiently, effectively, and fairly provide restitution to injured investors, including methods to improve the collection rates for civil penalties and disgorgements.

    2. Report Required. The Commission shall report its findings to the Committee on Financial Services of the House of Representatives and the Committee on Banking, Housing, and Urban Affairs of the Senate within 180 days after of the date of the enactment of this Act, and shall use such findings to revise its rules and regulations as necessary. The report shall include a discussion of regulatory or legislative actions that are recommended or that may be necessary to address concerns identified in the study.

  4. Conforming Amendments. Each of the following provisions is amended by inserting ", except as otherwise provided in section 308 of the Sarbanes-Oxley Act of 2002" after "Treasury of the United States":

    1. Section 21(d)(3)(C)(i) of the Securities Exchange Act of 1934.

    2. Section 21A(d)(1) of such Act.

    3. Section 20(d)(3)(A) of the Securities Act of 1933.

    4. Section 42(e)(3)(A) of the Investment Company Act of 1940.

    5. Section 209(e)(3)(A) of the Investment Advisers Act of 1940.

  5. Definition. As used in this section, the term "disgorgement fund" means a fund established in any administrative or judicial proceeding described in subsection (a).

Legislative History

July 30, 2002, 107 P.L. 204, Title III, § 308, 116 Stat. 745.

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