(3)
Determination of responsibility
(A)
In general
In any private action, the court shall instruct the jury to answer special interrogatories, or if there is no jury, shall make findings, with respect to each covered person and each of the other persons claimed by any of the parties to have caused or contributed to the loss incurred by the plaintiff, including persons who have entered into settlements with the plaintiff or plaintiffs, concerning—
(i)
whether such person violated the securities laws;
(ii)
the percentage of responsibility of such person, measured as a percentage of the total fault of all persons who caused or contributed to the loss incurred by the plaintiff; and
(iii)
whether such person knowingly committed a violation of the securities laws.
(B)
Contents of special interrogatories or findings
(C)
Factors for consideration
In determining the percentage of responsibility under this paragraph, the trier of fact shall consider—
(i)
the nature of the conduct of each covered person found to have caused or contributed to the loss incurred by the plaintiff or plaintiffs; and
(ii)
the nature and extent of the causal relationship between the conduct of each such person and the damages incurred by the plaintiff or plaintiffs.
(4)
Uncollectible share
(A)
In general
Notwithstanding paragraph (2)(B), upon
1
So in original. Probably should be preceded by “if,”.
motion made not later than 6 months after a final judgment is entered in any private action, the court determines that all or part of the share of the judgment of the covered person is not collectible against that covered person, and is also not collectible against a covered person described in paragraph (2)(A), each covered person described in paragraph (2)(B) shall be liable for the uncollectible share as follows:
(i)
Percentage of net worth
Each covered person shall be jointly and severally liable for the uncollectible share if the plaintiff establishes that—
(I)
the plaintiff is an individual whose recoverable damages under the final judgment are equal to more than 10 percent of the net worth of the plaintiff; and
(II)
the net worth of the plaintiff is equal to less than $200,000.
(C)
Covered persons subject to contribution
(5)
Right of contribution
To the extent that a covered person is required to make an additional payment pursuant to paragraph (4), that covered person may recover contribution—
(A)
from the covered person originally liable to make the payment;
(B)
from any covered person liable jointly and severally pursuant to paragraph (2)(A);
(C)
from any covered person held proportionately liable pursuant to this paragraph who is liable to make the same payment and has paid less than his or her proportionate share of that payment; or
(D)
from any other person responsible for the conduct giving rise to the payment that would have been liable to make the same payment.
(6)
Nondisclosure to jury
(7)
Settlement discharge
(A)
In general
A covered person who settles any private action at any time before final verdict or judgment shall be discharged from all claims for contribution brought by other persons. Upon entry of the settlement by the court, the court shall enter a bar order constituting the final discharge of all obligations to the plaintiff of the settling covered person arising out of the action. The order shall bar all future claims for contribution arising out of the action—
(i)
by any person against the settling covered person; and
(ii)
by the settling covered person against any person, other than a person whose liability has been extinguished by the settlement of the settling covered person.
(B)
Reduction
If a covered person enters into a settlement with the plaintiff prior to final verdict or judgment, the verdict or judgment shall be reduced by the greater of—
(i)
an amount that corresponds to the percentage of responsibility of that covered person; or
(ii)
the amount paid to the plaintiff by that covered person.
(9)
Statute of limitations for contribution
(10)
Definitions
For purposes of this subsection—
(A)
a covered person “knowingly commits a violation of the securities laws”—
(i)
with respect to an action that is based on an untrue statement of material fact or omission of a material fact necessary to make the statement not misleading, if—
(I)
that covered person makes an untrue statement of a material fact, with actual knowledge that the representation is false, or omits to state a fact necessary in order to make the statement made not misleading, with actual knowledge that, as a result of the omission, one of the material representations of the covered person is false; and
(II)
persons are likely to reasonably rely on that misrepresentation or omission; and
(ii)
with respect to an action that is based on any conduct that is not described in clause (i), if that covered person engages in that conduct with actual knowledge of the facts and circumstances that make the conduct of that covered person a violation of the securities laws;
(B)
reckless conduct by a covered person shall not be construed to constitute a knowing commission of a violation of the securities laws by that covered person;
(C)
the term “covered person” means—
(i)
a defendant in any private action arising under this chapter; or
(ii)
a defendant in any private action arising under
section 77k of this title, who is an outside director of the issuer of the securities that are the subject of the action; and
(D)
the term “outside director” shall have the meaning given such term by rule or regulation of the Commission.
([June 6, 1934, ch. 404], title I, § 21D, as added and amended [Pub. L. 104–67, title I, § 101(b)], title II, § 201(a), Dec. 22, 1995, [109 Stat. 743], 758; [Pub. L. 105–353, title I, § 101(b)(2)], title III, § 301(b)(13), Nov. 3, 1998, [112 Stat. 3233], 3236; [Pub. L. 111–203, title IX, § 933(b)], July 21, 2010, [124 Stat. 1883].)