124 STAT. 1863 PUBLIC LAW 111–203—JULY 21, 2010 ‘‘(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— ‘‘(I) substantial losses or created a significant risk of substantial losses to other persons; or ‘‘(II) substantial pecuniary gain to the person who committed the act or omission. ‘‘(3) EVIDENCE CONCERNING ABILITY TO PAY.—In any pro- ceeding in which the Commission may impose a penalty under this section, a respondent may present evidence of the ability of the respondent 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 the ability of the respondent to continue in business and the collectability of a penalty, taking into account any other claims of the United States or third parties upon the assets of the respondent and the amount of the assets of the respondent.’’. (2) UNDER THE SECURITIES EXCHANGE ACT OF 1934.—Section 21B(a) of the Securities Exchange Act of 1934 (15 U.S.C. 78u– 2(a)) is amended— (A) by striking the matter following paragraph (4); (B) in the matter preceding paragraph (1), by inserting after ‘‘opportunity for hearing,’’ the following: ‘‘that such penalty is in the public interest and’’; (C) by redesignating paragraphs (1) through (4) as subparagraphs (A) through (D), respectively, and adjusting the margins accordingly; (D) by striking ‘‘In any proceeding’’ and inserting the following: ‘‘(1) IN GENERAL.—In any proceeding’’; and (E) by adding at the end the following: ‘‘(2) CEASE-AND-DESIST PROCEEDINGS.—In any proceeding instituted under section 21C against any person, the Commis- sion may impose a civil penalty, if the Commission finds, on the record after notice and opportunity for hearing, that such person— ‘‘(A) is violating or has violated any provision of this title, or any rule or regulation issued under this title; or ‘‘(B) is or was a cause of the violation of any provision of this title, or any rule or regulation issued under this title.’’. (3) UNDER THE INVESTMENT COMPANY ACT OF 1940.—Section 9(d)(1) of the Investment Company Act of 1940 (15 U.S.C. 80a–9(d)(1)) is amended— (A) by striking the matter following subparagraph (C); (B) in the matter preceding subparagraph (A), by inserting after ‘‘opportunity for hearing,’’ the following: ‘‘that such penalty is in the public interest, and’’; (C) by redesignating subparagraphs (A) through (C) as clauses (i) through (iii), respectively, and adjusting the margins accordingly; (D) by striking ‘‘In any proceeding’’ and inserting the following:
