12 U.S.C. § 4637 — Notice after separation from service

Page 1722 TITLE 12—BANKS AND BANKING § 4636b pation in any manner in the conduct of the affairs of the regulated entity without the prior written consent of the Director. (B) Provisions applicable to order (i) Copy A copy of any order under subparagraph (A) shall be served upon the relevant regu- lated entity, at which time the entity-af- filiated party who is subject to the order (if a director or an officer) shall cease to be a director or officer of such regulated entity. (ii) Effect of acquittal A finding of not guilty or other disposi- tion of the charge shall not preclude the Director from instituting proceedings after such finding or disposition to remove a party from office or to prohibit further participation in the affairs of a regulated entity pursuant to subsection (a) or (b). (iii) Effective period Unless terminated by the Director, any notice of suspension or order of removal issued under this subsection shall remain effective and outstanding until the com- pletion of any hearing or appeal author- ized under paragraph (4). (3) Authority of remaining board members (A) In general If at any time, because of the suspension of 1 or more directors pursuant to this section, there shall be on the board of directors of a regulated entity less than a quorum of direc- tors not so suspended, all powers and func- tions vested in or exercisable by such board shall vest in and be exercisable by the direc- tor or directors on the board not so sus- pended, until such time as there shall be a quorum of the board of directors. (B) Appointment of temporary directors If all of the directors of a regulated entity are suspended pursuant to this section, the Director shall appoint persons to serve tem- porarily as directors pending the termi- nation of such suspensions, or until such time as those who have been suspended cease to be directors of the regulated entity and their respective successors take office. (4) Hearing regarding continued participation (A) In general Not later than 30 days after the date of service of any notice of suspension or order of removal issued pursuant to paragraph (1) or (2), the entity-affiliated party may re- quest in writing an opportunity to appear before the Director to show that the contin- ued service or participation in the conduct of the affairs of the regulated entity by such party does not, or is not likely to, pose a threat to the interests of the regulated enti- ty, or threaten to impair public confidence in the regulated entity. (B) Timing and form of hearing Upon receipt of a request for a hearing under subparagraph (A), the Director shall fix a time (not later than 30 days after the date of receipt of such request, unless ex- tended at the request of such party) and place at which the entity-affiliated party may appear, personally or through counsel, before the Director or 1 or more designated employees of the Director to submit written materials (or, at the discretion of the Direc- tor, oral testimony) and oral argument. (C) Determination Not later than 60 days after the date of a hearing under subparagraph (B), the Direc- tor shall notify the entity-affiliated party whether the suspension or prohibition from participation in any manner in the conduct of the affairs of the regulated entity will be continued, terminated, or otherwise modi- fied, or whether the order removing such party from office or prohibiting such party from further participation in any manner in the conduct of the affairs of the regulated entity will be rescinded or otherwise modi- fied. Such notification shall contain a state- ment of the basis for any adverse decision of the Director. (5) Rules The Director is authorized to prescribe such rules as may be necessary to carry out this subsection. (Pub. L. 102–550, title XIII, § 1377, as added Pub. L. 110–289, div. A, title I, § 1153(a)(2), July 30, 2008, 122 Stat. 2770.) Editorial Notes PRIOR PROVISIONS A prior section 1377 of Pub. L. 102–550 was renumbered section 1379 and is classified to section 4637 of this title. § 4636b. Criminal penalty Whoever, being subject to an order in effect under section 4636a of this title, without the prior written approval of the Director, know- ingly participates, directly or indirectly, in any manner (including by engaging in an activity specifically prohibited in such an order) in the conduct of the affairs of any regulated entity shall, notwithstanding section 3571 of title 18, be fined not more than $1,000,000, imprisoned for not more than 5 years, or both. (Pub. L. 102–550, title XIII, § 1378, as added Pub. L. 110–289, div. A, title I, § 1156(a), July 30, 2008, 122 Stat. 2777.) Editorial Notes PRIOR PROVISIONS A prior section 1378 of Pub. L. 102–550 was renumbered section 1379A and is classified to section 4638 of this title. § 4637. Notice after separation from service The resignation, termination of employment or participation, or separation of an entity-af- filiated party shall not affect the jurisdiction and authority of the Director to issue any notice and proceed under this subchapter against any such entity-affiliated party, if such notice is served before the end of the 6-year period begin- Page 1723 TITLE 12—BANKS AND BANKING § 4639 ning on the date such entity-affiliated party ceases to be associated with the regulated enti- ty. (Pub. L. 102–550, title XIII, § 1379, formerly § 1377, Oct. 28, 1992, 106 Stat. 3992; renumbered § 1379 and amended Pub. L. 110–289, div. A, title I, §§ 1153(a)(1), 1156(b)(1), 1157, July 30, 2008, 122 Stat. 2770, 2777.) Editorial Notes PRIOR PROVISIONS A prior section 1379 of Pub. L. 102–550 was renumbered section 1379B and is classified to section 4639 of this title. AMENDMENTS 2008—Pub. L. 110–289, § 1157(4), which directed the sub- stitution of ‘‘regulated entity.’’ for ‘‘enterprise.’’ could not be executed because of the prior amendment by Pub. L. 110–289, § 1156(b)(1). See below. Pub. L. 110–289, § 1157(3), which directed the substi- tution of ‘‘entity-affiliated party’’ for ‘‘director or offi- cer’’ wherever appearing, was executed by making the substitution for ‘‘director or executive officer’’ in two places, to reflect the probable intent of Congress. Pub. L. 110–289, § 1157(2), which directed the substi- tution of ‘‘an entity-affiliated party’’ for ‘‘a director or executive officer of an enterprise’’, was executed by making the substitution for ‘‘a director or executive of- ficer of a regulated entity’’, to reflect the probable in- tent of Congress and the prior amendment by Pub. L. 110–289, § 1156(b)(1). See below. Pub. L. 110–289, § 1157(1), substituted ‘‘6-year’’ for ‘‘2- year’’. Pub. L. 110–289, § 1156(b)(1), substituted ‘‘a regulated entity’’ for ‘‘an enterprise’’ and ‘‘the regulated entity’’ for ‘‘the enterprise’’. § 4638. Private rights of action This chapter shall not create any private right of action on behalf of any person against a regu- lated entity, or any director or executive officer of a regulated entity, or impair any existing pri- vate right of action under other applicable law. (Pub. L. 102–550, title XIII, § 1379A, formerly § 1378, Oct. 28, 1992, 106 Stat. 3993; renumbered § 1379A and amended Pub. L. 110–289, div. A, title I, §§ 1153(a)(1), 1156(b)(2), July 30, 2008, 122 Stat. 2770, 2777.) Editorial Notes REFERENCES IN TEXT This chapter, referred to in text, was in the original ‘‘this title and the amendments made by this title’’, meaning title XIII of Pub. L. 102–550, Oct. 28, 1992, 106 Stat. 3941, which is classified principally to this chap- ter. For complete classification of title XIII to the Code, see Short Title note set out under section 4501 of this title and Tables. PRIOR PROVISIONS A prior section 1379A of Pub. L. 102–550 was renum- bered section 1379C and is classified to section 4640 of this title. AMENDMENTS 2008—Pub. L. 110–289, § 1156(b)(2), which directed sub- stitution of ‘‘a regulated entity’’ for ‘‘an enterprise’’, was executed by making the substitution in two places to reflect the probable intent of Congress. § 4639. Public disclosure of final orders and agreements (a) In general The Director shall make available to the pub- lic— (1) any written agreement or other written statement for which a violation may be re- dressed by the Director or any modification to or termination thereof, unless the Director, in the Director’s discretion, determines that pub- lic disclosure would be contrary to the public interest; (2) any order that is issued with respect to any administrative enforcement proceeding initiated by the Director under this sub- chapter and that has become final in accord- ance with sections 4633 and 4634 of this title; and (3) any modification to or termination of any final order made public pursuant to this subsection. (b) Hearings All hearings on the record with respect to any notice of charges issued by the Director shall be open to the public, unless the Director, in the Director’s discretion, determines that holding an open hearing would be contrary to the public interest. (c) Delay of public disclosure under exceptional circumstances If the Director makes a determination in writ- ing that the public disclosure of any final order pursuant to subsection (a) would seriously threaten the financial health or security of the regulated entity, the Director may delay the public disclosure of such order for a reasonable time. (d) Documents filed under seal in public enforce- ment hearings The Director may file any document or part thereof under seal in any hearing commenced by the Director if the Director determines in writ- ing that disclosure thereof would be contrary to the public interest. (e) Retention of documents The Director shall keep and maintain a record, for not less than 6 years, of all docu- ments described in subsection (a) and all en- forcement agreements and other supervisory ac- tions and supporting documents issued with re- spect to or in connection with any enforcement proceeding initiated by the Director under this subchapter or any other law. (f) Disclosures to Congress This section may not be construed to author- ize the withholding, or to prohibit the disclo- sure, of any information to the Congress or any committee or subcommittee thereof. (Pub. L. 102–550, title XIII, § 1379B, formerly § 1379, Oct. 28, 1992, 106 Stat. 3993; renumbered § 1379B and amended Pub. L. 110–289, div. A, title I, §§ 1153(a)(1), 1156(b)(3), July 30, 2008, 122 Stat. 2770, 2777.)