[§485A-509] Civil liability. (a)
Enforcement of civil liability under this section shall be subject to the
Securities Litigation Uniform Standards Act of 1998.
(b) A person is liable to the purchaser if the
person sells a security in violation of section 485A-301 or, by means of an
untrue statement of a material fact or an omission of a material fact necessary
to make the statement made, in light of the circumstances under which it is
made, not misleading, the purchaser not knowing the untruth or omission and the
seller not sustaining the burden of proof that the seller did not know and, in
the exercise of reasonable care, could not have known of the untruth or
omission. An action under this subsection shall be governed by the following:
(1) The purchaser may maintain an action to recover
the consideration paid for the security, less the amount of any income received
on the security, and interest at the legal rate of interest, from the date of
the purchase, costs, and reasonable attorney's fees determined by the court,
upon the tender of the security, or for actual damages as provided in paragraph
(3);
(2) The tender referred to in paragraph (1) may be
made any time before entry of judgment. Tender requires only notice in a
record of ownership of the security and willingness to exchange the security
for the amount specified. A purchaser that no longer owns the security may
recover actual damages as provided in paragraph (3); and
(3) Actual damages in an action arising under this
subsection are the amount that would be recoverable upon a tender less the
value of the security when the purchaser disposed of it, and interest at the
legal rate of interest, from the date of the purchase, costs, and reasonable
attorney's fees determined by the court.
(c) A person shall be liable to the seller if
the person buys a security by means of an untrue statement of a material fact
or omission of a material fact necessary to make the statement made, in light
of the circumstances under which it is made, not misleading, the seller not
knowing of the untruth or omission, and the purchaser not sustaining the burden
of proof that the purchaser did not know, and in the exercise of reasonable
care, could not have known of the untruth or omission. An action under this
subsection shall be governed by the following:
(1) The seller may maintain an action to recover the
security, and any income received on the security, costs, and reasonable
attorney's fees determined by the court, upon the tender of the purchase price,
or for actual damages as provided in paragraph (3);
(2) The tender referred to in paragraph (1) may be
made any time before entry of judgment. Tender requires only notice in a
record of the present ability to pay the amount tendered and willingness to
take delivery of the security for the amount specified. If the purchaser no
longer owns the security, the seller may recover actual damages as provided in
paragraph (3); and
(3) Actual damages in an action arising under this
subsection are the difference between the price at which the security was sold
and the value the security would have had at the time of the sale in the
absence of the purchaser's conduct causing liability, and interest at the legal
rate of interest, from the date of the sale of the security, costs, and
reasonable attorney's fees determined by the court.
(d) A person acting as a broker-dealer or
agent that sells or buys a security in violation of section 485A-401(a),
485A-402(a), or 485A-506 shall be liable to the customer. The customer, if a
purchaser, may maintain an action for recovery of actual damages as specified
in subsection (b), or, if a seller, for a remedy as specified in subsection
(c).
(e) A person acting as an investment adviser
or investment adviser representative that provides investment advice for
compensation in violation of section 485A-403(a), 485A-404(a), or 485A-506
shall be liable to the client. The client may maintain an action to recover
the consideration paid for the advice, interest at the legal rate of interest,
from the date of payment, costs, and reasonable attorney's fees determined by
the court.
(f) A person that receives directly or
indirectly any consideration for providing investment advice to another person
and that employs a device, scheme, or artifice to defraud the other person or
engages in an act, practice, or course of business that operates or would
operate as a fraud or deceit on the other person, shall be liable to the other
person. An action under this subsection shall be governed by the following:
(1) The person defrauded may maintain an action to
recover the consideration paid for the advice and the amount of any actual
damages caused by the fraudulent conduct, interest at the legal rate of
interest from the date of the fraudulent conduct, costs, and reasonable
attorney's fees determined by the court, less the amount of any income received
as a result of the fraudulent conduct; and
(2) This subsection shall not apply to a
broker-dealer or its agents if the investment advice provided is solely incidental
to transacting business as a broker-dealer and no special compensation is
received for the investment advice.
(g) The following persons are liable jointly
and severally with and to the same extent as persons liable under subsections
(b) to (f):
(1) A person that directly or indirectly controls a
person liable under subsections (b) to (f), unless the controlling person
sustains the burden of proof that the person did not know, and in the exercise
of reasonable care could not have known, of the existence of conduct by reason
of which the liability is alleged to exist;
(2) An individual who is a managing partner,
executive officer, or director of a person liable under subsections (b) to (f),
including an individual having a similar status or performing similar
functions, unless the individual sustains the burden of proof that the
individual did not know and, in the exercise of reasonable care could not have
known, of the existence of conduct by reason of which the liability is alleged
to exist;
(3) An individual who is an employee of or associated
with a person liable under subsections (b) to (f) and who materially aids the
conduct giving rise to the liability, unless the individual sustains the burden
of proof that the individual did not know and, in the exercise of reasonable
care could not have known, of the existence of conduct by reason of which the
liability is alleged to exist; and
(4) A person that is a broker-dealer, agent,
investment adviser, or investment adviser representative that materially aids
the conduct giving rise to the liability under subsections (b) to (f), unless
the person sustains the burden of proof that the person did not know and, in
the exercise of reasonable care could not have known, of the existence of
conduct by reason of which liability is alleged to exist.
(h) Person liable under this section has a
right of contribution as in cases of contract against any other person liable
under this section for the same conduct.
(i) A cause of action under this section survives
the death of an individual who might have been a plaintiff or defendant.
(j) A person may not obtain relief:
(1) Under subsection (b) for violation of section
485A-301, or under subsection (d) or (e), unless the action is instituted
within one year after the violation occurred; or
(2) Under subsection (b), other than for violation of
section 485A-301, or under subsection (c) or (f), unless the action is
instituted within the earlier of two years after discovery of the facts
constituting the violation or five years after the violation.
(k) A person that has made, or has engaged in
the performance of, a contract in violation of this chapter or a rule adopted
or order issued under this chapter, or that has acquired a purported right
under the contract with knowledge of conduct by reason of which its making or
performance was in violation of this chapter, may not base an action on the
contract.
(l) A condition, stipulation, or provision
binding a person purchasing or selling a security or receiving investment
advice to waive compliance with this chapter or a rule adopted or order issued
under this chapter is void.
(m) The rights and remedies provided by this
chapter are in addition to any other rights or remedies that may exist. [L
2006, c 229, pt of §1]