UNITED STATES OF AMERICA

Before the

SECURITIES AND EXCHANGE COMMISSION

SECURITIES EXCHANGE ACT OF 1934 

Release No. 93875 / December 29, 2021

ADMINISTRATIVE PROCEEDING

File No. 3-15635

In the Matter of

Fifth Third Bancorp and 

Daniel Poston,

Respondents.

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ORDER APPOINTING 

FUND ADMINISTRATOR AND 

SETTING ADMINISTRATOR’S 

BOND AMOUNT

On December 4, 2013, the Commission issued an Order Instituting Public Administrative 

and Cease-and-Desist Proceedings Pursuant to Section 8A of the Securities Act of 1933 and 

Sections 4C and 21C of the Securities Exchange Act of 1934 and Rule 102(e) of the 

Commission’s Rules of Practice, Making Findings, and Imposing Remedial Sanctions and 

Cease-and-Desist Orders and Penalties (the “Order”)1against Fifth Third Bancorp and Daniel 

Poston (collectively, the “Respondents”). In the Order, the Commission found that Fifth Third 

failed to record substantial losses during the 2008 financial crisis by not properly accounting for 

a portion of its commercial real estate loan portfolio. In the third quarter of 2008, Fifth Third 

decided to sell large pools of non-performing commercial loans. U.S. accounting rules required 

the company to reclassify the loans from “held for investment” to “held for sale” and to carry 

them at fair value. Because the fair value of these loans were significantly below Fifth Third’s 

carrying value, classifying them as held for sale would have resulted in a $169 million 

 

1

 Securities Act Rel. No. 9490 (Dec. 4, 2013).
2

impairment and increased the company’s pretax loss in the third quarter of 2008 by 132%. 

Instead, Fifth Third continued to classify the loans as “held for investment,” which incorrectly 

suggested that the company had not made the decision to sell the loans. In addition, according to 

the Order, Poston was familiar with the company’s loan sale efforts and understood the relevant 

accounting rules. Nevertheless, he failed to direct that Fifth Third classify the loans as required. 

Poston also made representations in a management letter to Fifth Third’s auditors that, in light of 

the company’s loan sale activities, were not true. Fifth Third’s and Poston’s accounting 

violations operated to deceive investors during a time of significant upheaval and financial 

distress for the company. 

The Commission found that Fifth Third and Poston violated the antifraud, books and 

records, and internal accounting controls provisions of the securities laws. The Commission 

ordered the Respondents to pay $6,600,000.00 in civil money penalties to the Commission. The 

Commission further ordered the funds paid pursuant to the Order be held pending a decision 

whether the Commission, in its discretion, would seek to distribute the funds or transfer them to 

the general fund of the United States Treasury.

On July 28, 2021, the Commission issued an order2that created a Fair Fund, pursuant to 

Section 308(a) of the Sarbanes-Oxley Act of 2002, so the penalties paid can be distributed to 

harmed investors (the “Fair Fund”).

The Fair Fund consists of the $6,600,000.00 paid by the Respondents. The Fair Fund has 

been deposited in an interest-bearing account at the U.S. Department of the Treasury’s Bureau of 

the Fiscal Service, and any accrued interest will be for the benefit of the Fair Fund.

 

2

 Order Establishing a Fair Fund, Exchange Act Rel. No. 92511 (July 28, 2021).
3

The Division of Enforcement now seeks the appointment of Guidehouse Inc., Baker & 

Hostetler LLP, and Pace Claims Services LLC (“GBP”)3as the fund administrator and requests 

that the administrator’s bond be set at $6,600,000.00. GBP is included in the Commission’s 

approved pool of administrators.

Accordingly, IT IS HEREBY ORDERED that GBP is appointed as the fund 

administrator, pursuant to Rule 1105(a) of the Commission’s Rules on Fair Fund and 

Disgorgement Plans (“Commission’s Rules”),4and shall obtain a bond in accordance with Rule 

1105(c) of the Commission’s Rules,5in the amount of $6,600,000.00.

For the Commission, by the Division of Enforcement, pursuant to delegated authority.6

Vanessa A. Countryman

Secretary 

 

3

 The entities comprising GBP were formerly known as Navigant Consulting, Navigant PACE, and Goody Group 

LLC/Goody Counsel PLLC.

4

 17 C.F.R. § 201.1105(a).

5

 17 C.F.R. § 201.1105(c).

6

 17 C.F.R. § 200.30-4(a)(17).