UNITED STATES OF AMERICA

Before the

SECURITIES AND EXCHANGE COMMISSION

SECURITIES EXCHANGE ACT OF 1934 

Release No. 95418 / August 4, 2022

ADMINISTRATIVE PROCEEDING

File No. 3-15635

In the Matter of

Fifth Third Bancorp and Daniel 

Poston,

Respondents.

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NOTICE OF PROPOSED PLAN OF 

DISTRIBUTION AND 

OPPORTUNITY FOR COMMENT

Notice is hereby given, pursuant to Rule 1103 of the United States Securities and 

Exchange Commission’s (“Commission”) Rules on Fair Fund and Disgorgement Plans 

(“Commission’s Rules”), 17 C.F.R. § 201.1103, that the Division of Enforcement has submitted 

to the Commission a proposed plan of distribution (the “Proposed Plan”) for the distribution of 

monies paid in the above-captioned matter.

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 properly account for a portion of its commercial real estate loan portfolio during the 

2008 financial crisis. In the third quarter of 2008, Fifth Third decided to sell large pools of nonperforming 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 

 

1

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

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”).

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.

OPPORTUNITY FOR COMMENT

Pursuant to this Notice, all interested persons are advised that they may obtain a copy of 

the Plan from the Commission’s public website at http://www.sec.gov/litigation/fairfundlist.htm. 

Interested persons may also obtain a written copy of the Proposed Plan by submitting a written 

request to Allison J.P. Moon, United States Securities and Exchange Commission, 100 F Street, 

NE, Washington, DC 20549-5876. All persons who desire to comment on the Proposed Plan 

may submit their comments, in writing, no later than thirty (30) days from the date of this 

Notice:

1. to the Office of the Secretary, United States Securities and Exchange 

Commission, 100 F Street, NE, Washington, DC 20549-1090;

2. by using the Commission’s Internet comment form 

(http://www.sec.gov/litigation/admin.shtml); or

3. by sending an e-mail to rule-comments@sec.gov.

Comments submitted by email or via the Commission’s website should include “Administrative 

Proceeding File No. 3-15635” in the subject line. Comments received will be publicly available. 

Persons should submit only information they wish to make publicly available.

 

2

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

The Net Available Fair Fund3is comprised of the $6,600,000.00 in civil money penalties 

paid by the Respondents, plus interest and income earned thereon, less taxes, fees, and expenses. 

The Proposed Plan provides for the distribution of the Net Available Fair Fund to investors who 

were harmed by the Respondents’ failure to properly account for a portion of its commercial real 

estate loan portfolio. As calculated using the methodology detailed in the Plan of Allocation, 

investors will be compensated for their losses on shares of Fifth Third common stock and

American Depositary Shares of Series F and Series G preferred stock that were purchased, as 

well as, related warrants that were granted, between October 21, 2008 and January 22, 2009.

For the Commission, by the Division of Enforcement, pursuant to delegated authority.4

Vanessa A. Countryman

Secretary 

 

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

Plan.

4

 17 C.F.R. § 200.30-4(a)(21)(iii).