12 U.S.C. § 4009 — Administrative enforcement

Page 1590 TITLE 12—BANKS AND BANKING § 4009 the public resulting from such disaster that outweigh possible adverse effects. ‘‘(b) EXPEDITED FUNDS AVAILABILITY ACT.—During the 240-day period beginning on the date of enactment of this Act [June 12, 1997], the Board of Governors of the Federal Reserve System may make exceptions to the Expedited Funds Availability Act [12 U.S.C. 4001 et seq.] for depository institution offices located within any area referred to in subsection (a) of this section if the Board determines that the exception can reason- ably be expected to alleviate hardships to the public re- sulting from such disaster that outweigh possible ad- verse effects. ‘‘(c) TIME LIMIT ON EXCEPTIONS.—Any exception made under this section shall expire not later than Sep- tember 1, 1998. ‘‘(d) PUBLICATION REQUIRED.—The Board of Governors of the Federal Reserve System shall publish in the Fed- eral Register a statement that— ‘‘(1) describes any exception made under this sec- tion; and ‘‘(2) explains how the exception can reasonably be expected to produce benefits to the public that out- weigh possible adverse effects.’’ Similar provisions were contained in the following prior acts: Pub. L. 103–76, § 2, Aug. 12, 1993, 107 Stat. 752. Pub. L. 102–485, § 3, Oct. 23, 1992, 106 Stat. 2772. § 4009. Administrative enforcement (a) Administrative enforcement Compliance with the requirements imposed under this chapter, including regulations pre- scribed by and orders issued by the Board of Governors of the Federal Reserve System under this chapter, shall be enforced under— (1) section 8 of the Federal Deposit Insur- ance Act [12 U.S.C. 1818] in the case of— (A) national banks, and Federal branches and Federal agencies of foreign banks, by the Office of the Comptroller of the Cur- rency; (B) member banks of the Federal Reserve System (other than national banks), and of- fices, branches, and agencies of foreign banks located in the United States (other than Federal branches, Federal agencies, and insured State branches of foreign banks), by the Board of Governors of the Federal Reserve System; and (C) banks insured by the Federal Deposit Insurance Corporation (other than members of the Federal Reserve System) and insured State branches of foreign banks, by the Board of Directors of the Federal Deposit In- surance Corporation; (2) section 8 of the Federal Deposit Insur- ance Act [12 U.S.C. 1818], by the Director of the Office of Thrift Supervision in the case of savings associations the deposits of which are insured by the Federal Deposit Insurance Cor- poration; and (3) the Federal Credit Union Act [12 U.S.C. 1751 et seq.], by the National Credit Union Ad- ministration Board with respect to any Fed- eral credit union or insured credit union. The terms used in paragraph (1) that are not de- fined in this chapter or otherwise defined in sec- tion 3(s) of the Federal Deposit Insurance Act (12 U.S.C. 1813(s)) shall have the meaning given to them in section 1(b) of the International Banking Act of 1978 (12 U.S.C. 3101). (b) Additional powers (1) Violation of this chapter treated as viola- tion of other Acts For purposes of the exercise by any agency referred to in subsection (a) of this section of its powers under any Act referred to in that subsection, a violation of any requirement im- posed under this chapter shall be deemed to be a violation of a requirement imposed under that Act. (2) Enforcement authority under other Acts In addition to its powers under any provision of law specifically referred to in subsection (a) of this section, each of the agencies referred to in such subsection may exercise, for purposes of enforcing compliance with any requirement imposed under this chapter, any other author- ity conferred on it by law. (c) Enforcement by Board (1) In general Except to the extent that enforcement of the requirements imposed under this chapter is specifically committed to some other Govern- ment agency under subsection (a) of this sec- tion, the Board of Governors of the Federal Reserve System shall enforce such require- ments. (2) Additional remedy If the Board determines that— (A) any depository institution which is not a depository institution described in sub- section (a), or (B) any other person subject to the author- ity of the Board under this chapter, includ- ing any person subject to the authority of the Board under section 4004(d)(2) or 4008(c) of this title, has failed to comply with any requirement im- posed by this chapter or by the Board under this chapter, the Board may issue an order prohibiting any depository institution, any Federal Reserve bank, or any other person subject to the authority of the Board from en- gaging in any activity or transaction which directly or indirectly involves such noncom- plying depository institution or person (in- cluding any activity or transaction involving the receipt, payment, collection, and clearing of checks and any related function of the pay- ment system with respect to checks). (d) Procedural rules The authority of the Board to prescribe regu- lations under this chapter does not impair the authority of any other agency designated in this section to make rules regarding its own proce- dures in enforcing compliance with require- ments imposed under this chapter. (Pub. L. 100–86, title VI, § 610, Aug. 10, 1987, 101 Stat. 649; Pub. L. 101–73, title VII, § 744(d), Aug. 9, 1989, 103 Stat. 438; Pub. L. 102–242, title II, § 212(h), Dec. 19, 1991, 105 Stat. 2303.) Editorial Notes REFERENCES IN TEXT The Federal Credit Union Act, referred to in subsec. (a)(3), is act June 26, 1934, ch. 750, 48 Stat. 1216, which Page 1591 TITLE 12—BANKS AND BANKING § 4010 is classified generally to chapter 14 (§ 1751 et seq.) of this title. For complete classification of this Act to the Code, see section 1751 of this title and Tables. AMENDMENTS 1991—Subsec. (a). Pub. L. 102–242, § 212(h)(2), inserted at end ‘‘The terms used in paragraph (1) that are not defined in this chapter or otherwise defined in section 3(s) of the Federal Deposit Insurance Act (12 U.S.C. 1813(s)) shall have the meaning given to them in section 1(b) of the International Banking Act of 1978 (12 U.S.C. 3101).’’ Subsec. (a)(1). Pub. L. 102–242, § 212(h)(1), added par. (1) and struck out former par. (1) which read as follows: ‘‘section 8 of the Federal Deposit Insurance Act in the case of— ‘‘(A) national banks, by the Comptroller of the Cur- rency; ‘‘(B) member banks of the Federal Reserve System (other than national banks), by the Board of Gov- ernors of the Federal Reserve System; and ‘‘(C) banks insured by the Federal Deposit Insur- ance Corporation (other than members of the Federal Reserve System), by the Board of Directors of the Federal Deposit Insurance Corporation;’’. 1989—Subsec. (a)(2). Pub. L. 101–73 amended par. (2) generally. Prior to amendment, par. (2) read as follows: ‘‘section 5(d) of the Home Owners’ Loan Act of 1933, sec- tion 407 of the National Housing Act, and section 17 of the Federal Home Loan Bank Act, by the Federal Home Loan Bank Board (acting directly or through the Fed- eral Savings and Loan Insurance Corporation), in the case of any institution subject to any of those provi- sions; and’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE Section effective Sept. 1, 1988, see section 613(b) of Pub. L. 100–86, set out as a note under section 4001 of this title. § 4010. Civil liability (a) Civil liability Except as otherwise provided in this section, any depository institution which fails to comply with any requirement imposed under this chap- ter or any regulation prescribed under this chap- ter with respect to any person other than an- other depository institution is liable to such person in an amount equal to the sum of— (1) any actual damage sustained by such per- son as a result of the failure; (2)(A) in the case of an individual action, such additional amount as the court may allow, except that the liability under this sub- paragraph shall not be less than $100 nor greater than $1,000; or (B) in the case of a class action, such amount as the court may allow, except that— (i) as to each member of the class, no min- imum recovery shall be applicable; and (ii) the total recovery under this subpara- graph in any class action or series of class actions arising out of the same failure to comply by the same depository institution shall not be more than the lesser of $500,000 or 1 percent of the net worth of the deposi- tory institution involved; and (3) in the case of any successful action to en- force the foregoing liability, the costs of the action, together with a reasonable attorney’s fee as determined by the court. (b) Class action awards In determining the amount of any award in any class action, the court shall consider, among other relevant factors— (1) the amount of any actual damages award- ed; (2) the frequency and persistence of failures of compliance; (3) the resources of the depository institu- tion; (4) the number of persons adversely affected; and (5) the extent to which the failure of compli- ance was intentional. (c) Bona fide errors (1) General rule A depository institution may not be held lia- ble in any action brought under this section for a violation of this chapter if the depository institution demonstrates by a preponderance of the evidence that the violation was not in- tentional and resulted from a bona fide error, notwithstanding the maintenance of proce- dures reasonably adapted to avoid any such error. (2) Examples Examples of a bona fide error include cler- ical, calculation, computer malfunction and programming, and printing errors, except that an error of legal judgment with respect to a depository institution’s obligation under this chapter is not a bona fide error. (d) Jurisdiction Any action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year after the date of the occurrence of the violation involved. (e) Reliance on Board rulings No provision of this section imposing any li- ability shall apply to any act done or omitted in good faith in conformity with any rule, regula- tion, or interpretation thereof by the Board of Governors of the Federal Reserve System, not- withstanding the fact that after such act or omission has occurred, such rule, regulation, or interpretation is amended, rescinded, or deter- mined by judicial or other authority to be in- valid for any reason. (f) Authority to establish rules regarding losses and liability among depository institutions The Board is authorized to impose on or allo- cate among depository institutions the risks of loss and liability in connection with any aspect of the payment system, including the receipt, payment, collection, or clearing of checks, and any related function of the payment system with respect to checks. Liability under this sub- section shall not exceed the amount of the check giving rise to the loss or liability, and, where there is bad faith, other damages, if any, suffered as a proximate consequence of any act or omission giving rise to the loss or liability. (Pub. L. 100–86, title VI, § 611, Aug. 10, 1987, 101 Stat. 650.)