15 U.S.C. § 78fff–4 — Direct payment procedure

submitted 48 years ago by Pub. L. 91-598 to r/title-15-COMMERCE-AND-TRADE · 1,064 words · no verdicts yet

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SIPC can pay a failing member's customers directly, skipping a formal liquidation. It may use this shortcut only when strict conditions are met, including that all claims together total under $250,000. SIPC publishes notice, pays claims from its own funds, and can switch to liquidation later if needed.

(a) Determination regarding direct payments — SIPC may choose the direct payment procedure instead of starting a liquidation proceeding, but only if all six things are true: (1) the member (or someone who was a member within the last 180 days) has failed, or is at risk of failing, to meet its obligations to customers; (2) at least one of the conditions in section 78eee(b)(1) exists for that member; (3) each customer's claim falls within the protection limits set by section 78fff–3(a); (4) all customers' claims added together are less than $250,000; (5) it will cost SIPC less to pay claims this way than to run a full liquidation; and (6) the member's broker-dealer registration has been terminated, or the member has agreed to let SIPC use this direct payment method. If all six are met, SIPC can choose direct payment instead of liquidation. (b) Notice — Once SIPC decides to use direct payment, it must quickly publish notice in one or more general-circulation newspapers, in whatever form SIPC decides. At the same time, it must mail a copy of that notice to everyone who appears, from the member's books and records, to have had an open account as a customer within the past 12 months. The notice must say SIPC will pay customers directly, without a liquidation proceeding, and must explain how to file a claim. The direct payment procedure officially starts on the date of the first newspaper publication. SIPC will not pay any customer claim unless it arrives within six months of that date. The only exception: SIPC can grant a fixed extension, for good cause, if the United States, a state or local government, or a minor or incompetent person without a guardian applies within that six-month window. (c) Payments to customers — SIPC must promptly pay each customer what they are owed for securities or cash, either by delivering securities or paying money, based on what the member's own books and records show or on other proof that satisfies SIPC. This is subject to the same limits found in sections 78fff–2(d) and 78fff–3(a). When SIPC hands out securities instead of cash, it values them as of the close of business on the day the subsection (b) notice was published. SIPC can require a customer to sign receipts, affidavits, releases, or assignments before paying them. If SIPC uses its own money to pay a customer, it steps into that customer's shoes and can pursue the member for that amount, on top of any other legal rights SIPC has. (d) Effect on claims — Except as this section otherwise says, nothing here stops any person — including someone SIPC has stepped into the shoes of — from proving up and pursuing their own claims against the member through other means, including claims for money or specific securities, without using SIPC's money. (e) Jurisdiction of Bankruptcy Courts — After SIPC publishes notice starting a direct payment procedure, anyone unhappy with how SIPC decided their claim under subsection (c) can ask for a final court decision. They must do this within six months after SIPC mails them its decision. Only the federal courts that handle bankruptcy cases can hear these claims, and only they have this power. The case must be filed in the district where the failing firm's headquarters is located. A court ruling on a customer's rights under subsection (c) does not stop the customer from pursuing other rights or remedies against the member. (f) Discontinuance of direct payment procedures — SIPC can decide, at its own discretion, to stop the direct payment procedure at any time after starting it. If SIPC stops, it can then ask for a protective decree to start a full liquidation proceeding under section 78eee. Any cash payments, security handouts, or claim decisions already made under direct payment stay valid and count even if a liquidation proceeding later happens. If someone had a court case pending under subsection (e) when a trustee gets appointed under section 78eee(b)(3), that case is automatically and permanently paused. The court must transfer that case to itself. Once transferred, the complaint becomes that person's claim in the liquidation proceeding, treated as received by the trustee on the date the trustee was appointed — no matter when the transfer actually happens. (g) References — For this section, wherever other sections (78fff–1(b)(1), 78fff–2(d), 78fff–2(f), 78fff–3(a), 78lll(5), and 78lll(12)) mention "the trustee," that means SIPC instead. And wherever section 78fff–2(a) mentions the "date of publication of notice," that means the notice published under this section instead.

the actual law source: uscode.house.gov ↗public domain

(a) Determination regarding direct payments

If SIPC determines that—

(1)

any member of SIPC (including a person who was a member within one hundred eighty days prior to such determination) has failed or is in danger of failing to meet its obligations to customers;

(2)

one or more of the conditions specified in section 78eee(b)(1) of this title exist with respect to such member;

(3)

the claim of each customer of the member is within the limits of protection provided in section 78fff–3(a) of this title;

(4)

the claims of all customers of the member aggregate less than $250,000;

(5)

the cost to SIPC of satisfying customer claims under this section will be less than the cost under a liquidation proceeding; and

(6)

such member’s registration as a broker-dealer under section 78o(b) of this title has been terminated, or such member has consented to the use of the direct payment procedure set forth in this section,

SIPC may, in its discretion, use the direct payment procedure set forth in this section in lieu of instituting a liquidation proceeding with respect to such member.

(b) Notice

Promptly after a determination under subsection (a) that the direct payment procedure is to be used with respect to a member, SIPC shall cause notice of such direct payment procedure to be published in one or more newspapers of general circulation in a form and manner determined by SIPC, and at the same time shall cause to be mailed a copy of such notice to each person who appears, from the books and records of such member, to have been a customer of the member with an open account within the past twelve months, to the address of such person as it appears from the books and records of such member. Such notice shall state that SIPC will satisfy customer claims directly, without a liquidation proceeding, and shall set forth the form and manner in which claims may be presented. A direct payment procedure shall be deemed to commence on the date of first publication under this subsection and no claim by a customer shall be paid or otherwise satisfied by SIPC unless received within the six-month period beginning on such date, except that SIPC shall, upon application within such period, and for cause shown, grant a reasonable, fixed extension of time for the filing of a claim by the United States, by a State or political subdivision thereof, or by an infant or incompetent person without a guardian.

SIPC shall promptly satisfy all obligations of the member to each of its customers relating to, or net equity claims based upon, securities or cash by the delivery of securities or the effecting of payments to such customer (subject to the provisions of section 78fff–2(d) of this title and section 78fff–3(a) of this title insofar as such obligations are ascertainable from the books and records of the member or are otherwise established to the satisfaction of SIPC. For purposes of distributing securities to customers, all securities shall be valued as of the close of business on the date of publication under subsection (b). Any payment or delivery of securities pursuant to this section may be conditioned upon the execution and delivery, in a form to be determined by SIPC, of appropriate receipts, supporting affidavits, releases, and assignments. To the extent moneys of SIPC are used to satisfy the claims of customers, in addition to all other rights it may have at law or in equity, SIPC shall be subrogated to the claims of such customers against the member.

(d) Effect on claims

Except as otherwise provided in this section, nothing in this section shall limit the right of any person, including any subrogee, to establish by formal proof or otherwise such claims as such person may have against the member, including claims for the payment of money and the delivery of specific securities, without resort to moneys of SIPC.

(e) Jurisdiction of Bankruptcy Courts

After SIPC has published notice of the institution of a direct payment procedure under this section, any person aggrieved by any determination of SIPC with respect to his claim under subsection (c) may, within six months following mailing by SIPC of its determination with respect to such claim, seek a final adjudication of such claim. The courts of the United States having jurisdiction over cases under title 11 shall have original and exclusive jurisdiction of any civil action for the adjudication of such claim. Any such action shall be brought in the judicial district where the head office of the debtor is located. Any determination of the rights of a customer under subsection (c) shall not prejudice any other right or remedy of the customer against the member.

(f) Discontinuance of direct payment procedures

If, at any time after the institution of a direct payment procedure with respect to a member, SIPC determines, in its discretion, that continuation of such direct payment procedure is not appropriate, SIPC may cease such direct payment procedure and, upon so doing, may seek a protective decree pursuant to section 78eee of this title. To the extent payments of cash, distributions of securities, or determinations with respect to the validity of a customer’s claim are made under this section, such payments, distributions, and determinations shall be recognized and given full effect in the event of any subsequent liquidation proceeding. Any action brought under subsection (e) and pending at the time of the appointment of a trustee under section 78eee(b)(3) of this title shall be permanently stayed by the court at the time of such appointment, and the court shall enter an order directing the transfer or removal to it of such suit. Upon such removal or transfer the complaint in such action shall constitute the plaintiff’s claim in the liquidation proceeding, if appropriate, and shall be deemed received by the trustee on the date of his appointment regardless of the date of actual transfer or removal of such action.

(g) References

For purposes of this section, any reference to the trustee in sections 78fff–1(b)(1), 78fff–2(d), 78fff–2(f), 78fff–3(a), 78lll(5) and 78lll(12) of this title shall be deemed a reference to SIPC, and any reference to the date of publication of notice under section 78fff–2(a) of this title shall be deemed a reference to the publication of notice under this section.

Source credit: (Pub. L. 91–598, § 10, as added Pub. L. 95–283, § 9, May 21, 1978, 92 Stat. 266; amended Pub. L. 95–598, title III, § 308(n), Nov. 6, 1978, 92 Stat. 2675.)

history & why it existsrecord from the source credit

1978Enacted · Pub. L. 91-598 · 92 Stat. 266
1978Amended · Pub. L. 95-598 · 92 Stat. 2675

A history note hasn’t been published yet. The record shows enactment by Pub. L. 91-598 on 1978-05-21.

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