12 U.S.C. § 1849 — Saving provision

Page 1254 TITLE 12—BANKS AND BANKING § 1848 such violation continues: Provided, That the Board may, in its discretion, compromise, modify, or remit any civil money penalty which is subject to imposition or has been imposed under authority of this subsection. The penalty may be assessed and collected by the Board by written notice. As used in the section, the term ‘violates’ includes without any limitation any ac- tion (alone or with another or others) for or toward causing, bringing about, participating in, counseling, or aiding or abetting a violation. ‘‘(2) In determining the amount of the penalty the Board shall take into account the appropriateness of the penalty with respect to the size of financial re- sources and good faith of the company or person charged, the gravity of the violation, the history of previous violations, and such other matters as justice may require. ‘‘(3) The company or person assessed shall be afforded an opportunity for agency hearing, upon request made within ten days after issuance of the notice of assess- ment. In such hearing all issues shall be determined on the record pursuant to section 554 of title 5. The agency determination shall be made by final order which may be reviewed only as provided in section 1848 of this title. If no hearing is requested as herein provided, the assessment shall constitute a final and unappealable order. ‘‘(4) If any company or person fails to pay an assess- ment after it has become a final and unappealable order, or after the court of appeals has entered final judgment in favor of the Board, the Board shall refer the matter to the Attorney General, who shall recover the amount assessed by action in the appropriate United States district court. In such action the validity and appropriateness of the final order imposing the penalty shall not be subject to review. ‘‘(5) The Board shall promulgate regulations estab- lishing procedures necessary to implement this sub- section. ‘‘(6) All penalties collected under authority of this subsection shall be covered into the Treasury of the United States.’’ Subsec. (c). Pub. L. 101–73, § 905(i), added subsec. (c). Subsec. (d). Pub. L. 101–73, § 911(e), added subsec. (d). 1982—Subsec. (b)(1). Pub. L. 97–320 inserted proviso giving the Board discretionary authority to com- promise, etc., any civil money penalty imposed under this subsection, and substituted ‘‘may be assessed’’ for ‘‘shall be assessed’’. 1978—Pub. L. 95–630 designated existing provisions as subsec. (a) and added subsec. (b). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1989 AMENDMENT Amendment by section 907(j) of Pub. L. 101–73 applica- ble to conduct engaged in after Aug. 9, 1989, except that increased maximum penalties of $5,000 and $25,000 may apply to conduct engaged in before such date if such conduct is not already subject to a notice issued by the appropriate agency and occurred after completion of the last report of the examination of the institution by the appropriate agency occurring before Aug. 9, 1989, see section 907(l) of Pub. L. 101–73, set out as a note under section 93 of this title. Amendment by section 911(e) of Pub. L. 101–73 appli- cable with respect to reports filed or required to be filed after Aug. 9, 1989, see section 911(i) of Pub. L. 101–73, set out as a note under section 161 of this title. EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–630, relating to imposition of civil penalties, applicable to violations occurring or continuing after Nov. 10, 1978, see section 109 of Pub. L. 95–630, set out as a note under section 93 of this title. § 1848. Judicial review Any party aggrieved by an order of the Board under this chapter may obtain a review of such order in the United States Court of Appeals within any circuit wherein such party has its principal place of business or in the Court of Ap- peals in the District of Columbia, by filing in the court, within thirty days after the entry of the Board’s order, a petition praying that the order of the Board be set aside. A copy of such petition shall be forthwith transmitted to the Board by the clerk of the court, and thereupon the Board shall file in the court the record made before the Board, as provided in section 2112 of title 28. Upon the filing of such petition the court shall have the jurisdiction to affirm, set aside, or modify the order of the Board and to require the Board to take such action with re- gard to the matter under review as the court deems proper. The findings of the Board as to the facts, if supported by substantial evidence, shall be conclusive. (May 9, 1956, ch. 240, § 9, 70 Stat. 138; Pub. L. 85–791, § 34, Aug. 28, 1958, 72 Stat. 951; Pub. L. 89–485, § 10, July 1, 1966, 80 Stat. 240.) Editorial Notes AMENDMENTS 1966—Pub. L. 89–485 reduced from 60 to 30 days the pe- riod allowed for the filing of a petition to obtain judi- cial review of a Board order. 1958—Pub. L. 85–791 substituted, in second sentence, ‘‘transmitted to the Board by the clerk of the court, and thereupon the Board shall file in the court the record made before the Board, as provided in section 2112 of title 28’’ for ‘‘served upon the Board, and there- upon the Board shall certify and file in the court a transcript of the record made before the Board’’, and in third sentence, ‘‘such petition’’ for ‘‘the transcript’’. § 1848a. Repealed. Pub. L. 111–203, title VI, § 604(c)(2), July 21, 2010, 124 Stat. 1601 Section, act May 9, 1956, ch. 240, § 10A, as added Pub. L. 106–102, title I, § 113, Nov. 12, 1999, 113 Stat. 1368, re- lated to limitation on rulemaking, prudential, super- visory, and enforcement authority of the Board. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF REPEAL Repeal effective on the transfer date, see section 604(j) of Pub. L. 111–203, set out as an Effective Date of 2010 Amendment note under section 1462 of this title. § 1849. Saving provision (a) General rule Nothing herein contained shall be interpreted or construed as approving any act, action, or conduct which is or has been or may be in viola- tion of existing law, nor shall anything herein contained constitute a defense to any action, suit, or proceeding pending or hereafter insti- tuted on account of any prohibited antitrust or monopolistic act, action, or conduct, except as specifically provided in this section. (b) Antitrust review (1) In general The Board shall immediately notify the At- torney General of any approval by it pursuant to section 1842 of this title of a proposed acqui- sition, merger, or consolidation transaction and, if the transaction also involves an acqui- Page 1255 TITLE 12—BANKS AND BANKING § 1849 sition under section 1843 of this title, the Board shall also notify the Federal Trade Commission of such approval. If the Board has found that it must act immediately in order to prevent the probable failure of a bank or bank holding company involved in any such trans- action, the transaction may be consummated immediately upon approval by the Board. If the Board has advised the Comptroller of the Currency or the State supervisory authority, as the case may be, of the existence of an emergency requiring expeditious action and has required the submission of views and rec- ommendations within ten days, the trans- action may not be consummated before the fifth calendar day after the date of approval by the Board. In all other cases, the trans- action may not be consummated before the thirtieth calendar day after the date of ap- proval by the Board or, if the Board has not received any adverse comment from the Attor- ney General of the United States relating to competitive factors, such shorter period of time as may be prescribed by the Board with the concurrence of the Attorney General, but in no event less than 15 calendar days after the date of approval. Any action brought under the antitrust laws arising out of an acquisi- tion, merger, or consolidation transaction ap- proved under section 1842 of this title shall be commenced prior to the earliest time under this subsection at which the transaction ap- proval under section 1842 of this title might be consummated. The commencement of such an action shall stay the effectiveness of the Board’s approval unless the court shall other- wise specifically order. In any such action, the court shall review de novo the issues pre- sented. In any judicial proceeding attacking any acquisition, merger, or consolidation transaction approved pursuant to section 1842 of this title on the ground that such trans- action alone and of itself constituted a viola- tion of any antitrust laws other than section 2 of title 15, the standards applied by the court shall be identical with those that the Board is directed to apply under section 1842 of this title. Upon the consummation of an acquisi- tion, merger, or consolidation transaction ap- proved under section 1842 of this title in com- pliance with this chapter and after the termi- nation of any antitrust litigation commenced within the period prescribed in this section, or upon the termination of such period if no such litigation is commenced therein, the trans- action may not thereafter be attacked in any judicial proceeding on the ground that it alone and of itself constituted a violation of any antitrust laws other than section 2 of title 15, but nothing in this chapter shall exempt any bank holding company involved in such a transaction from complying with the antitrust laws after the consummation of such trans- action. (2) Section 1823(f) cases (A) If— (i) the Federal Deposit Insurance Corpora- tion learns that a bank insured by such Cor- poration is in danger of closing; and (ii) the Corporation is considering assist- ing the acquisition of such bank and its af- filiated banks by another bank or holding company under section 1823(f) of this title and such acquisition is subject to the ap- proval of the Board under section 1842 of this title; the Corporation shall immediately notify the Board of such facts. (B) Upon receipt of notice from the Federal Deposit Insurance Corporation under subpara- graph (A) or at such earlier time as deemed appropriate by the Board, the Board shall im- mediately notify the Attorney General of the United States of the facts concerning the pos- sible acquisition. (C) Within 5 days of receiving notice under subparagraph (B), the Attorney General shall notify the Board in writing of the Attorney General’s preliminary finding as to the con- sistency of the possible acquisition with the antitrust laws. (D) The Board may reduce or eliminate the post-approval waiting period established under paragraph (1) for an acquisition to which this paragraph applies, except that such period may not be eliminated or reduced to less than 5 days without the concurrence of the Attor- ney General. (c) Antitrust proceedings; Board and State bank- ing agency as party; representation by coun- sel In any action brought under the antitrust laws arising out of any acquisition, merger, or con- solidation transaction approved by the Board under section 1842 of this title, the Board and any State banking supervisory agency having jurisdiction within the State involved, may ap- pear as a party of its own motion and as of right, and be represented by its counsel. (d) Treatment of merger transactions con- summated prior or subsequent to May 9, 1956, and not in litigation prior to July 1, 1966 Any acquisition, merger, or consolidation of the kind described in section 1842(a) of this title which was consummated at any time prior or subsequent to May 9, 1956, and as to which no litigation was initiated by the Attorney General prior to July 1, 1966, shall be conclusively pre- sumed not to have been in violation of any anti- trust laws other than section 2 of title 15. (e) Antitrust litigation; substantive law applica- ble to proceedings pending on or after July 1, 1966, with respect to merger transactions Any court having pending before it on or after July 1, 1966, any litigation initiated under the antitrust laws by the Attorney General with re- spect to any acquisition, merger, or consolida- tion of the kind described in section 1842(a) of this title shall apply the substantive rule of law set forth in section 1842 of this title. (f) ‘‘Antitrust laws’’ defined For the purposes of this section, the term ‘‘antitrust laws’’ means the Act of July 2, 1890 (the Sherman Antitrust Act), the Act of October 15, 1914 (the Clayton Act), and any other Acts in pari materia. (May 9, 1956, ch. 240, § 11, 70 Stat. 146; Pub. L. 89–485, § 11, July 1, 1966, 80 Stat. 240; Pub. L. Page 1256 TITLE 12—BANKS AND BANKING § 1850 1 See References in Text note below. 2 So in original. Probably should be ‘‘subparagraph’’. 91–607, title I, § 104, Dec. 31, 1970, 84 Stat. 1766; Pub. L. 95–188, title III, § 303, Nov. 16, 1977, 91 Stat. 1390; Pub. L. 100–86, title V, § 502(h)(3), Aug. 10, 1987, 101 Stat. 628; Pub. L. 103–325, title III, § 321(a), Sept. 23, 1994, 108 Stat. 2226; Pub. L. 106–102, title I, § 131, Nov. 12, 1999, 113 Stat. 1382.) Editorial Notes REFERENCES IN TEXT Act of July 2, 1890 (the Sherman Antitrust Act), re- ferred to in subsec. (f), is classified to sections 1 to 7 of Title 15, Commerce and Trade. For complete classifica- tion of this Act to the Code, see Short Title note set out under section 1 of Title 15 and Tables. Act of October 15, 1914 (the Clayton Act), referred to in subsec. (f), is act Oct. 15, 1914, ch. 323, 38 Stat. 730, which is classified generally to sections 12, 13, 14 to 19, 21, and 22 to 27 of Title 15, and sections 52 and 53 of Title 29, Labor. For further details and complete classi- fication of this Act to the Code, see References in Text note set out under section 12 of Title 15 and Tables. AMENDMENTS 1999—Subsec. (b)(1). Pub. L. 106–102 inserted before pe- riod at end of first sentence ‘‘and, if the transaction also involves an acquisition under section 1843 of this title, the Board shall also notify the Federal Trade Commission of such approval’’. 1994—Subsec. (b)(1). Pub. L. 103–325 inserted before pe- riod at end of fourth sentence ‘‘or, if the Board has not received any adverse comment from the Attorney Gen- eral of the United States relating to competitive fac- tors, such shorter period of time as may be prescribed by the Board with the concurrence of the Attorney General, but in no event less than 15 calendar days after the date of approval’’. 1987—Subsec. (b). Pub. L. 100–86 designated existing provisions as par. (1) and added par. (2). 1977—Subsec. (b). Pub. L. 95–188 authorized a proposed acquisition, merger, or consolidation transaction to be consummated immediately upon approval by the Board where the Board has found that it must act imme- diately in order to prevent the probable failure of a bank or bank holding company involved in any such transaction; prohibited a transaction from being con- summated before the fifth calendar day after the date of approval by the Board where the Board has advised the Comptroller of the Currency or the State super- visory authority, as the case may be, of the existence of an emergency requiring expeditious action and has required the submission of views and recommendations within ten days; continued for all other cases the thir- ty day waiting period after date of approval by the Board for consummation of the transaction; and sub- stituted provision for commencement of stay actions prior to the earliest time at which the transaction ap- proval under section 1842 of this title might be con- summated for prior provision for commencement of such stay actions within the thirty-day waiting period. 1970—Subsec. (b). Pub. L. 91–607, § 104(a), substituted ‘‘section 1842 of this title’’ for ‘‘this chapter’’ where ap- pearing first two times, and inserted ‘‘approved under section 1842 of this title’’ in second sentence before ‘‘shall be commended’’ and in last sentence before ‘‘in compliance with this chapter’’. Subsec. (c). Pub. L. 91–607, § 104(b), substituted ‘‘under section 1842 of this title’’ for ‘‘pursuant to this chap- ter’’. 1966—Pub. L. 89–485 designated existing provisions as subsec. (a), inserted ‘‘except as specifically provided in this section’’, and added subsecs. (b) to (f). Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106–102 effective 120 days after Nov. 12, 1999, see section 161 of Pub. L. 106–102, set out as a note under section 24 of this title. § 1850. Acquisition of subsidiary and tying ar- rangement: Federal Reserve Board pro- ceedings; application for authorization; com- petitor as party in interest and person ag- grieved; judicial review With respect to any proceeding before the Fed- eral Reserve Board wherein an applicant seeks authority to acquire a subsidiary which is a bank under section 1842 of this title or to engage in an activity otherwise prohibited under chap- ter 22 of this title, a party who would become a competitor of the applicant or subsidiary there- of by virtue of the applicant’s or its subsidiary’s acquisition, entry into the business involved, or activity, shall have the right to be a party in in- terest in the proceeding and, in the event of an adverse order of the Board, shall have the right as an aggrieved party to obtain judicial review thereof as provided in section 1848 of this title or as otherwise provided by law. (Pub. L. 91–607, title I, § 105, Dec. 31, 1970, 84 Stat. 1766; Pub. L. 106–102, title I, § 102(b)(1), Nov. 12, 1999, 113 Stat. 1341.) Editorial Notes CODIFICATION Section was enacted as part of the Bank Holding Company Act Amendments of 1970, and not as part of the Bank Holding Company Act of 1956 which comprises this chapter. AMENDMENTS 1999—Pub. L. 106–102 struck out ‘‘, to engage directly or indirectly in a nonbanking activity pursuant to sec- tion 1843 of this title,’’ after ‘‘section 1842 of this title’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106–102 effective 120 days after Nov. 12, 1999, see section 161 of Pub. L. 106–102, set out as a note under section 24 of this title. § 1850a. Securities holding companies (a) Definitions In this section— (1) the term ‘‘associated person of a securi- ties holding company’’ means a person di- rectly or indirectly controlling, controlled by, or under common control with, a securities holding company; (2) the term ‘‘foreign bank’’ has the same meaning as in section 3101(7) of this title; (3) the term ‘‘insured bank’’ has the same meaning as in section 1813 of this title; (4) the term ‘‘securities holding company’’— (A) means— (i) a person (other than a natural person) that owns or controls 1 or more brokers or dealers registered with the Commission; and (ii) the associated persons of a person de- scribed in clause (i); and (B) does not include a person that is— (i) a nonbank financial company super- vised by the Board under title I; 1 (ii) an insured bank (other than an insti- tution described in subparagraphs 2 (D),