UNITED STATES OF AMERICA

Before the

SECURITIES AND EXCHANGE COMMISSION

SECURITIES EXCHANGE ACT OF 1934 

Release No. 95988 / October 6, 2022

ADMINISTRATIVE PROCEEDING

File No. 3-15635

In the Matter of

Fifth Third Bancorp and Daniel 

Poston,

Respondents.

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ORDER APPROVING 

PLAN OF DISTRIBUTION

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”)

1

against Fifth Third Bancorp and Daniel 

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

failed to properly account 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 them from “held for investment” to 

“held for sale,” and to carry them at fair value. 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. Because the fair values of these loans were significantly below Fifth 

Third’s carrying values, classifying them as held for sale would have resulted in a $169 million 

impairment, and increased Fifth Third’s pretax loss in the third quarter of 2008 by 132 percent. 

In addition, according to the Order, Daniel 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 misrepresentations 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. In total, the Commission ordered the 

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

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”).

 

1

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

2

 Order Establishing a Fair Fund, Exchange Act Rel. No. 92511 (July 28, 2021).
2

The Fair Fund includes the $6,600,000.00 paid by the Respondents. The assets of the 

Fair Fund are subject to the continuing jurisdiction and control of the Commission. 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 interest accrued will be added to the Fair Fund.

On August 4, 2022, the Division of Enforcement, pursuant to delegated authority, 

published a Notice of Proposed Plan of Distribution and Opportunity for Comment (“Notice”),3

pursuant to Rule 1103 of the Commission’s Rules on Fair Fund and Disgorgement Plans 

(“Commission’s Rules”);4and simultaneously posted the Proposed Plan of Distribution (the 

“Proposed Plan”). The Notice advised interested persons that they could obtain a copy of the 

Proposed Plan from the Commission’s public website or by submitting a written request to

Allison Moon, United States Securities and Exchange Commission, 100 F Street, NE, 

Washington, DC 20549-5876. The Notice also advised that all persons desiring to comment on 

the Proposed Plan could submit their comments, in writing, within 30 days of the Notice. The 

Commission received no comments on the Proposed Plan during the comment period. 

 

The Proposed Plan provides for the distribution of the Net Available Fair Fund5to 

investors who were harmed by the Respondents’ failure to properly account for a portion of its 

commercial real estate loan portfolio.

The Division of Enforcement now requests that the Commission approve the Proposed 

Plan.

Accordingly, it is hereby ORDERED, pursuant to Rule 1104 of the Commission’s Rules,6

that the Proposed Plan is approved, and the approved Plan of Distribution shall be posted 

simultaneously with this order on the Commission’s website at www.sec.gov.

For the Commission, by the Division of Enforcement, pursuant to delegated authority.7

Vanessa A. Countryman

Secretary 

 

3

 Exchange Act Rel. No. 95418 (Aug. 4, 2022).

4

 17 C.F.R. § 201.1103.

5

 All capitalized terms used herein but not defined shall have the same meanings ascribed to them in the Proposed 

Plan.

6

 17 C.F.R. § 201.1104. 

7

 17 C.F.R. § 200.30-4(a)(21)(iv).