§16509. Civil liability


Published: 2015

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§16509. Civil liability








1. Securities Litigation Uniform Standards Act. 
Enforcement of civil liability under this section is subject to the federal Securities
Litigation Uniform Standards Act of 1998.


[
2005, c. 65, Pt. A, §2 (NEW)
.]








2. Liability of seller to purchaser. 
A person is liable to the purchaser if the person sells a security in violation
of section 16301; section 16303, subsection 6; section 16304, subsection 5; or section
16305, subsection 6 or by means of an untrue statement of a material fact or an omission
to state a material fact necessary in order to make the statement made, in light of
the circumstances under which it is made, not misleading, the purchaser not knowing
of 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 is governed by the following.





A. 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 the 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 C. [2005, c. 65, Pt. A, §2 (NEW).]










B. The tender referred to in paragraph A 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 C. [2005, c. 65, Pt. A, §2 (NEW).]










C. 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 the interest at the legal rate of interest from the date of the purchase,
costs and reasonable attorney's fees determined by the court. [2005, c. 65, Pt. A, §2 (NEW).]







[
2005, c. 65, Pt. A, §2 (NEW)
.]








3. Liability of purchaser to seller. 
A person is liable to the seller if the person buys a security by means of an untrue
statement of a material fact or omission to state a material fact necessary in order
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 is governed by the following.





A. 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 C. [2005, c. 65, Pt. A, §2 (NEW).]










B. The tender referred to in paragraph A 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 C. [2005, c. 65, Pt. A, §2 (NEW).]










C. 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 the 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. [2005, c. 65, Pt. A, §2 (NEW).]







[
2005, c. 65, Pt. A, §2 (NEW)
.]








4. Liability of unlicensed broker-dealer and agent. 
A person acting as a broker-dealer or agent that sells or buys a security in violation
of section 16401, subsection 1; section 16402, subsection 1; or section 16506 is liable
to the customer. The customer, if a purchaser, may maintain an action for a remedy
as specified in subsection 2, paragraphs A to C or, if a seller, for a remedy as specified
in subsection 3, paragraphs A to C.


[
2005, c. 65, Pt. A, §2 (NEW)
.]








5. Liability of unlicensed investment adviser and investment adviser representative. 
A person acting as an investment adviser or investment adviser representative that
provides investment advice for compensation in violation of section 16403, subsection
1; section 16404, subsection 1; or section 16506 is 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.


[
2005, c. 65, Pt. A, §2 (NEW)
.]








6. Liability for investment advice. 
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 is liable to the other person.
An action under this subsection is governed by the following.





A. 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. [2005, c. 65, Pt. A, §2 (NEW).]










B. This subsection does 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. [2005, c. 65, Pt. A, §2 (NEW).]







[
2005, c. 65, Pt. A, §2 (NEW)
.]








7. Joint and several liability. 
The following persons are liable jointly and severally with and to the same extent
as persons liable under subsections 2 to 6:





A. A person that directly or indirectly controls a person liable under subsections
2 to 6, 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; [2005, c. 65, Pt. A, §2 (NEW).]










B. An individual who is a managing partner, executive officer or director of a person
liable under subsections 2 to 6, 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; [2005, c. 65, Pt. A, §2 (NEW).]










C. An individual who is an employee of or associated with a person liable under subsections
2 to 6 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 [2005, c. 65, Pt. A, §2 (NEW).]










D. 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 2 to 6, 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 the liability is alleged to exist. [2005, c. 65, Pt. A, §2 (NEW).]







[
2005, c. 65, Pt. A, §2 (NEW)
.]








8. Right of contribution. 
A 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.


[
2005, c. 65, Pt. A, §2 (NEW)
.]








9. Survival of cause of action. 
A cause of action under this section survives the death of an individual who might
have been a plaintiff or defendant.


[
2005, c. 65, Pt. A, §2 (NEW)
.]








10. Statute of limitations. 
A person may not obtain relief:





A. Under subsection 2 for violation of section 16301 or under subsection 4 or 5, unless
the action is instituted within 2 years after the violation occurred; or [2005, c. 65, Pt. A, §2 (NEW).]










B. Under subsection 2, other than for violation of section 16301, or under subsection
3 or 6, unless the action is instituted within the earlier of 2 years after discovery
of the facts constituting the violation or 5 years after the violation. [2005, c. 65, Pt. A, §2 (NEW).]







[
2005, c. 65, Pt. A, §2 (NEW)
.]








11. No enforcement of violative contract. 
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.


[
2005, c. 65, Pt. A, §2 (NEW)
.]








12. No contractual waiver. 
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.


[
2005, c. 65, Pt. A, §2 (NEW)
.]








13. Survival of other rights or remedies. 
The rights and remedies provided by this chapter are in addition to any other rights
or remedies that may exist, but this chapter does not create a cause of action not
specified in this section or section 16411, subsection 5.


[
2005, c. 65, Pt. A, §2 (NEW)
.]





SECTION HISTORY

2005, c. 65, §A2 (NEW).

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