[Rev. 2/10/2015 4:10:32
PM--2014R2]
CHAPTER 91 - COMMODITIES
GENERAL PROVISIONS
NRS 91.010 Purpose;
construction.
NRS 91.020 Definitions.
NRS 91.030 “Administrator”
defined.
NRS 91.040 “Board
of trade” defined.
NRS 91.050 “Commodity”
defined.
NRS 91.060 “Commodity
contract” defined.
NRS 91.070 “Commodity
Exchange Act” defined.
NRS 91.080 “Commodity
Futures Trading Commission” defined.
NRS 91.090 “Commodity
merchant” defined.
NRS 91.100 “Commodity
option” defined.
NRS 91.110 “Financial
institution” defined.
NRS 91.120 “Offer”
defined.
NRS 91.130 “Person”
defined.
NRS 91.140 “Precious
metal” defined.
NRS 91.150 “Sale”
and “sell” defined.
NRS 91.160 Administration.
NRS 91.170 Cooperation
with other agencies.
NRS 91.180 Effect
on chapter 90 of NRS.
UNLAWFUL ACTS
NRS 91.190 Sale
or purchase of commodities prohibited; exceptions.
NRS 91.200 Persons
exempted.
NRS 91.210 Transactions
exempted.
NRS 91.220 Prohibited
activities of commodity merchant and board of trade.
NRS 91.230 Fraudulent
conduct.
NRS 91.240 Applicability
of NRS 91.190, 91.220
and 91.230.
NRS 91.250 Liability
of principals and agents.
ENFORCEMENT; REMEDIES; PENALTIES
NRS 91.260 Regulations
and orders.
NRS 91.270 Orders:
Procedure.
NRS 91.280 Orders:
Judicial review.
NRS 91.290 Appointment
of Administrator as attorney to receive service of process.
NRS 91.300 Investigations
and subpoenas.
NRS 91.310 Enforcement
by Administrator.
NRS 91.320 Remedies
for violation of this chapter.
NRS 91.330 Remedies
for violation of similar law of another jurisdiction.
NRS 91.340 Criminal
penalties.
_________
GENERAL PROVISIONS
NRS 91.010 Purpose; construction. The
Legislature intends that this chapter be construed and implemented to
effectuate its general purpose to protect investors, to prevent and prosecute
illegal and fraudulent schemes involving commodity contracts and to maximize
coordination with federal and other states’ law and the administration and
enforcement thereof. This chapter is not intended to create any rights or
remedies upon which actions may be brought by private persons against persons
who violate the provisions of this chapter.
(Added to NRS by 1987, 1287)
NRS 91.020 Definitions. As
used in this chapter, unless the context otherwise requires, the words and
terms defined in NRS 91.030 to 91.150, inclusive, have the meanings ascribed to them
in those sections.
(Added to NRS by 1987, 1282; A 2003, 3178)
NRS 91.030 “Administrator” defined. “Administrator”
means the Administrator of the Securities Division of the Office of the
Secretary of State.
(Added to NRS by 1987, 1282)
NRS 91.040 “Board of trade” defined. “Board
of trade” means any person or group of persons engaged in buying or selling any
commodity or receiving any commodity for sale on consignment, whether or not the
person or group of persons is characterized as a board of trade, exchange or
other form of market place.
(Added to NRS by 1987, 1282)
NRS 91.050 “Commodity” defined.
1. “Commodity” means, except as otherwise
provided in subsection 2 or specified by the Administrator by regulation or
order:
(a) Any agricultural, grain or livestock product
or by-product;
(b) Any metal or mineral, including a precious
metal;
(c) Any gem or gemstone whether characterized as
precious, semiprecious or otherwise;
(d) Any fuel, whether liquid, gaseous or
otherwise;
(e) Any foreign currency; and
(f) All other goods, articles, products or items
of any kind.
2. “Commodity” does not include:
(a) A numismatic coin whose fair market value is
at least 15 percent higher than the value of the metal it contains;
(b) Real property or any timber, agricultural or
livestock product grown or raised on real property and offered or sold by the
owner or lessee of such real property; or
(c) Any work of art offered or sold by art
dealers, at public auction or offered or sold through a private sale by the
owner thereof.
(Added to NRS by 1987, 1282)
NRS 91.060 “Commodity contract” defined.
1. “Commodity contract” means any account,
agreement or contract for the purchase or sale, primarily for speculation or
investment purposes and not for use or consumption by the offeree or purchaser,
of one or more commodities, whether for immediate or subsequent delivery or
whether delivery is intended by the parties, and whether characterized as a cash
contract, deferred shipment or deferred delivery contract, forward contract,
futures contract, installment or margin contract, leverage contract or
otherwise. Any commodity contract offered or sold, in the absence of evidence
to the contrary, is presumed to be offered or sold for speculation or
investment purposes.
2. “Commodity contract” does not include
any contract or agreement which requires, and under which the purchaser
receives, within 28 calendar days after the payment of any portion of the
purchase price, physical delivery of the total amount of each commodity to be
purchased under the contract or agreement.
(Added to NRS by 1987, 1283)
NRS 91.070 “Commodity Exchange Act” defined. “Commodity
Exchange Act” means the act of Congress known as the Commodity Exchange Act, 7
U.S.C. §§ 1 et seq.
(Added to NRS by 1987, 1283)
NRS 91.080 “Commodity Futures Trading Commission” defined. “Commodity Futures Trading Commission” means
the independent regulatory agency established by Congress to administer the
Commodity Exchange Act.
(Added to NRS by 1987, 1283)
NRS 91.090 “Commodity merchant” defined. “Commodity
merchant” means any of the following, as defined or described in the Commodity
Exchange Act or by a rule of the Commodity Futures Trading Commission:
1. A futures commission merchant;
2. A commodity pool operator;
3. A commodity trading adviser;
4. An introducing broker;
5. A leverage transaction merchant;
6. An associated person of any person
listed in subsections 1 to 5, inclusive;
7. A floor broker; or
8. Any other person, other than a futures
association, required to register with the Commodity Futures Trading
Commission.
(Added to NRS by 1987, 1283)
NRS 91.100 “Commodity option” defined. “Commodity
option” means any account, agreement or contract giving a party thereto the
right but not the obligation to purchase or sell one or more commodities or one
or more commodity contracts, whether characterized as an option, privilege,
indemnity, bid, offer, put, call, advance guaranty, decline guaranty or
otherwise, but does not include an option traded on a national securities
exchange registered with the Securities and Exchange Commission.
(Added to NRS by 1987, 1283)
NRS 91.110 “Financial institution” defined. “Financial
institution” means a bank, credit union, savings institution or trust company
organized under, or supervised pursuant to, the laws of the United States or of
any state.
(Added to NRS by 1987, 1284; A 1999, 1456)
NRS 91.120 “Offer” defined. “Offer”
includes every offer to sell, purchase or enter into a commodity contract or
commodity option.
(Added to NRS by 1987, 1284)
NRS 91.130 “Person” defined.
1. “Person” includes a government,
governmental agency or political subdivision of a government.
2. “Person” does not include a contract
market designated by the Commodity Futures Trading Commission or any
clearinghouse thereof or a national securities exchange registered with the
Securities and Exchange Commission, or any employee, officer or director of
such a contract market, clearinghouse or exchange acting solely in that capacity.
(Added to NRS by 1987, 1284)
NRS 91.140 “Precious metal” defined. “Precious
metal” means the following in either coin, bullion or other form:
1. Silver;
2. Gold;
3. Platinum;
4. Palladium;
5. Copper; and
6. Such other items as the Administrator
may specify by regulation or order.
(Added to NRS by 1987, 1284)
NRS 91.150 “Sale” and “sell” defined. “Sale”
or “sell” includes every contract of sale, contract to sell or disposition for
value.
(Added to NRS by 1987, 1284)
NRS 91.160 Administration.
1. This chapter must be administered by
the Administrator of the Securities Division of the Office of the Secretary of
State.
2. It is unlawful for the Administrator or
any employee of the Administrator to use for personal benefit any information
which is filed with or obtained by the Administrator and which is not made
public. It is unlawful for the Administrator or any employee of the
Administrator to conduct any dealings regarding a security or commodity based
upon any such information, even though made public, if there has not been a
sufficient period of time for the securities or commodity markets to assimilate
such information.
3. Except as otherwise provided in
subsection 4, all information and materials collected, assembled or maintained
by the Administrator are public records.
4. Except as otherwise provided in NRS 239.0115, the following information
is confidential:
(a) Information obtained in private
investigations pursuant to NRS 91.300; and
(b) Information obtained from federal agencies
which may not be disclosed under federal law.
5. The Administrator in his or her
discretion may disclose any information made confidential under subsection 4 to
persons identified in subsection 1 of NRS 91.170.
6. No provision of this chapter either
creates or derogates any privilege which exists at common law, by statute or
otherwise when any record or other evidence is sought under subpoena directed
to the Administrator or any employee of the Administrator.
(Added to NRS by 1987, 1289; A 2003, 3178; 2007, 2070)
NRS 91.170 Cooperation with other agencies.
1. To encourage uniform application and
interpretation of this chapter and regulation and enforcement of securities
laws in general, the Administrator and the employees of the Administrator may
cooperate, including bearing the expense of the cooperation, with the
securities agency or administrator of another jurisdiction, Canadian province
or territory, the Commodity Futures Trading Commission, the Securities and
Exchange Commission, any self-regulatory organization established under the
Commodity Exchange Act or the Securities Exchange Act of 1934, any national or
international organization of officers or agencies which regulate commodities
or securities, and any governmental law enforcement agency.
2. The cooperation authorized by
subsection 1 includes, but is not limited to, the following:
(a) Making joint examinations or investigations;
(b) Holding joint administrative hearings;
(c) Filing and prosecuting joint litigation;
(d) Sharing and exchanging personnel;
(e) Sharing and exchanging information and
records;
(f) Formulating and adopting mutual regulations,
statements of policy, guidelines, proposed statutory changes and releases; and
(g) Issuing and enforcing subpoenas at the
request of the agency administering this chapter in another jurisdiction, the
securities agency of another jurisdiction, the Commodity Futures Trading
Commission or the Securities and Exchange Commission if the information sought
would also be subject to lawful subpoena for conduct occurring in this State.
(Added to NRS by 1987, 1290; A 2003, 3178)
NRS 91.180 Effect on chapter 90 of NRS. Nothing in this chapter impairs, derogates or
otherwise affects the authority or powers of the Administrator under chapter 90 of NRS or the application of any
provision thereof to any person or transaction subject thereto.
(Added to NRS by 1987, 1287)
UNLAWFUL ACTS
NRS 91.190 Sale or purchase of commodities prohibited; exceptions. Except as otherwise provided in NRS 91.200 and 91.210, a person
shall not sell or purchase or offer to sell or purchase any commodity under any
commodity contract or under any commodity option or offer to enter into or
enter into as seller or purchaser any commodity contract or any commodity
option.
(Added to NRS by 1987, 1284)
NRS 91.200 Persons exempted. The
prohibitions in NRS 91.190 do not apply to any
transaction offered by and in which any of the following persons, or any
employee, officer or director thereof acting solely in that capacity, is the
purchaser or seller:
1. A person registered with the Commodity
Futures Trading Commission as a futures commission merchant or as a leverage
transaction merchant whose activities require such registration;
2. A person registered with the Securities
and Exchange Commission as a broker-dealer whose activities require such
registration;
3. A person affiliated with, and whose
obligations and liabilities under the transaction are guaranteed by, a person
referred to in subsection 1 or 2;
4. A person who is a member of a contract
market designated by the Commodity Futures Trading Commission or any
clearinghouse thereof;
5. A financial institution; or
6. A person registered under the laws of
this State as a securities broker-dealer whose activities require such
registration.
Ê The
exemption provided in this section does not apply to any transaction or
activity which is prohibited by the Commodity Exchange Act or by a rule of the
Commodity Futures Trading Commission.
(Added to NRS by 1987, 1284)
NRS 91.210 Transactions exempted.
1. The prohibitions in NRS 91.190 do not apply to the following:
(a) An account, agreement or transaction within
the exclusive jurisdiction of the Commodity Futures Trading Commission granted
under the Commodity Exchange Act.
(b) A commodity contract for the purchase of one
or more precious metals which requires, and under which the purchaser receives,
within 7 calendar days after the payment of any portion of the purchase price,
physical delivery of the quantity of the precious metals purchased by the
payment. For purposes of this paragraph, physical delivery shall be deemed to
have occurred if, within the 7-day period, the quantity of precious metals purchased
by the payment is delivered, whether in specifically segregated or fungible
bulk form, into the possession of a depository other than the seller which is
either:
(1) A financial institution;
(2) A depository the warehouse receipts of
which are recognized for delivery purposes for any commodity on a contract
market designated by the Commodity Futures Trading Commission;
(3) A storage facility licensed or
regulated by the United States or any agency thereof; or
(4) A depository designated by the
Administrator,
Ê and the
depository issues, and the purchaser receives, a certificate, record of title,
confirmation or other instrument evidencing that such a quantity of precious
metals has been delivered to the depository and is being and will continue to
be held by the depository on the purchaser’s behalf, free and clear of all
liens and encumbrances, other than liens of the purchaser, tax liens, liens
agreed to by the purchaser, or liens of the depository for fees and expenses,
which have previously been disclosed to the purchaser.
(c) A commodity contract solely between persons
engaged in producing, processing, using commercially or handling as merchants,
each commodity subject thereto, or any by-product thereof.
(d) A commodity contract under which the offeree
or the purchaser is a person referred to in NRS 91.200,
an insurance company, an investment company as defined in the Investment
Company Act of 1940, or an employee pension and profit-sharing or benefit plan,
other than a self-employed individual retirement plan or individual retirement
account.
2. The Administrator may adopt regulations
or issue orders prescribing the terms and conditions of all transactions and
contracts covered by the provisions of this chapter which are not within the
exclusive jurisdiction of the Commodity Futures Trading Commission granted by
the Commodity Exchange Act, exempting any person or transaction from any
provision of this chapter conditionally or unconditionally and otherwise
implementing the provisions of this chapter for the protection of purchasers
and sellers of commodities.
(Added to NRS by 1987, 1285; A 2003, 3179)
NRS 91.220 Prohibited activities of commodity merchant and board of trade.
1. A person shall not engage in a trade or
business or otherwise act as a commodity merchant unless the person:
(a) Is registered or temporarily licensed with
the Commodity Futures Trading Commission for each activity constituting the
person as a commodity merchant and the registration or temporary license has
not expired or been suspended or revoked; or
(b) Is exempt from registration by virtue of the
Commodity Exchange Act or of a rule of the Commodity Futures Trading
Commission.
2. A board of trade must not trade, or
provide a place for the trading of, any commodity contract or commodity option
required to be traded on or subject to the rules of a contract market
designated by the Commodity Futures Trading Commission unless the board of
trade has been designated for the commodity contract or commodity option and
the designation has not been vacated, suspended or revoked.
(Added to NRS by 1987, 1286)
NRS 91.230 Fraudulent conduct. A
person shall not directly or indirectly:
1. Cheat or defraud, or attempt to cheat
or defraud, any other person or employ any device, scheme or artifice to
defraud any other person;
2. Make any false report, enter any false
record, or make any untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements made, in the light of
the circumstances under which they were made, not misleading;
3. Engage in any transaction, act, practice
or course of business, including, without limitation, any form of advertising
or solicitation, which operates or would operate as a fraud or deceit upon any
person; or
4. Misappropriate or convert the money,
security or property of any other person,
Ê in or in
connection with the purchase or sale of, the offer to purchase or sell, the
offer to enter into, or the entry into of, any commodity contract or commodity
option subject to the provisions of NRS 91.190 or 91.200 or paragraph (b) or (d) of subsection 1 of NRS 91.210.
(Added to NRS by 1987, 1286)
NRS 91.240 Applicability of NRS 91.190, 91.220
and 91.230.
1. NRS 91.190,
91.220 and 91.230 apply
to persons who sell or offer to sell when:
(a) An offer to sell is made in this State; or
(b) An offer to buy is made and accepted in this
State.
2. NRS 91.190,
91.220 and 91.230 apply
to persons who buy or offer to buy when:
(a) An offer to buy is made in this State; or
(b) An offer to sell is made and accepted in this
State.
3. For the purposes of this section, an
offer to sell or to buy is made in this State, whether or not either party is
then present in this State, when the offer:
(a) Originates from this State; or
(b) Is directed by the offeror to this State and
received at the place to which it is directed, or at any post office in this
State in the case of a mailed offer.
4. For the purposes of this section, an
offer to buy or to sell is accepted in this State when acceptance:
(a) Is communicated to the offeror in this State;
and
(b) Has not previously been communicated to the
offeror, orally or in writing, outside this State.
Ê Acceptance
is communicated to the offeror in this State, whether or not either party is
then present in this State, when the offeree directs it to the offeror in this
State, reasonably believing the offeror to be in this State and it is received
at the place to which it is directed, or at any post office in this State in
the case of a mailed acceptance.
5. For the purposes of this section, an
offer to sell or to buy is not made in this State when:
(a) The publisher circulates or there is
circulated on behalf of the publisher in this State a bona fide newspaper or
other publication of general, regular and paid circulation which is not
published in this State, or which is published in this State but has had more
than two-thirds of its circulation outside this State during the past 12
months; or
(b) A radio or television program originating
outside this State is received in this State.
(Added to NRS by 1987, 1291)
NRS 91.250 Liability of principals and agents.
1. The act, omission, or failure of any
officer, agent or other person acting for any natural person, association,
partnership, corporation or trust within the scope of his or her employment or
office shall be deemed the act, omission or failure of the natural person,
association, partnership, corporation or trust, as well as of the officer,
agent or other person.
2. Every person who directly or indirectly
controls another person liable under any provision of this chapter, every
partner, officer or director of the liable person, every person occupying a
similar status or performing similar functions as the liable person and every
employee of the liable person who materially aids in the violation is also
liable jointly and severally with and to the same extent as the liable person,
unless the person who is also liable by virtue of this provision sustains the
burden of proof that he or she did not know, and in exercise of reasonable care
could not have known, of the existence of the facts by reason of which the
liability is alleged to exist.
(Added to NRS by 1987, 1286)
ENFORCEMENT; REMEDIES; PENALTIES
NRS 91.260 Regulations and orders. The
Administrator may adopt such regulations or issue such orders as are necessary
to carry out the provisions of this chapter and which are in the public
interest or for the protection of investors. The regulations or orders may:
1. Designate items which are not
commodities;
2. Designate precious metals; and
3. Prescribe forms to be used pursuant to
this chapter.
(Added to NRS by 1987, 1290)
NRS 91.270 Orders: Procedure.
1. The Administrator shall commence an
administrative proceeding under this chapter by entering either a notice of
intent to do a contemplated act or a summary order. The notice of intent or summary
order may be entered without notice or opportunity for hearing, and need not be
supported by findings of fact or conclusions of law, but must be in writing.
2. Upon entry of a notice of intent or
summary order, the Administrator shall promptly notify all interested parties
that the notice or summary order has been entered and the reasons therefor. If
the proceeding is pursuant to a notice of intent, the Administrator shall
inform all interested parties of the date, time and place set for the hearing
on the notice. If the proceeding is pursuant to a summary order, the
Administrator shall inform all interested parties that they have 30 business
days after the entry of the order to file a written request for a hearing on
the matter with the Administrator and that the hearing will be scheduled to
commence within 30 business days after the receipt of the written request.
3. If the proceeding is pursuant to a
summary order, the Administrator, whether or not a written request for a
hearing is received from any interested party, may set the matter for hearing
on the Administrator’s own motion.
4. If no hearing is requested and none is
ordered by the Administrator, the summary order automatically becomes a final
order 30 business days after the entry of the order.
5. If a hearing is requested or ordered,
the Administrator, after notice of and opportunity for a hearing, may modify or
vacate the order or extend it until a final determination is made.
6. No final order or order after a hearing
may be returned without:
(a) Appropriate notice to all interested persons;
(b) Opportunity for hearing by all interested
persons; and
(c) Entry of written findings of fact and
conclusions of law.
Ê Every
hearing in an administrative proceeding under this chapter must be public
unless the Administrator grants a request joined in by all the respondents that
the hearing be conducted privately.
(Added to NRS by 1987, 1292)
NRS 91.280 Orders: Judicial review.
1. Any person aggrieved by a final order
of the Administrator may obtain judicial review of the order in the District
Court for the First Judicial District by filing with the court, within 60 days
after the entry of the order, a written petition praying that the order be
modified or set aside in whole or in part. A copy of the petition for review
must be served upon the Administrator.
2. Upon the filing of a petition for
review, unless the court orders the taking of additional evidence pursuant to
subsection 5 or 6, the court has exclusive jurisdiction of the matter, and the
Administrator may not modify or set aside the order, in whole or in part.
3. The filing of a petition for review
under subsection 1 does not, unless specifically ordered by the court, operate
as a stay of the Administrator’s order, and the Administrator may enforce or
ask the court to enforce the order pending the outcome of the proceedings.
4. Upon receipt of the petition for
review, the Administrator shall certify and file in the court a copy of the
order and the transcript or record of the evidence upon which it was based. If
the order became final by operation of law under subsection 4 of NRS 91.270, the Administrator shall certify and file
in court the summary order, evidence of its source and an affidavit certifying
that no hearing has been held and that the order became final pursuant to that
subsection.
5. If either the aggrieved party or the
Administrator applies to the court for leave to submit additional evidence, and
shows to the satisfaction of the court that there were reasonable grounds for
failure to submit the evidence in the hearing before the Administrator or other
good cause, the court may order the additional evidence to be taken by the
Administrator under such conditions as the court considers proper.
6. If new evidence is ordered taken by the
court, the Administrator may modify the findings and order by reason of the
additional evidence and shall file in the court the additional evidence
together with any modified or new findings or order.
7. The court shall review the petition
based upon the original record before the Administrator as amended under
subsections 5 and 6. The findings of the Administrator as to the facts, if
supported by competent, material and substantive evidence, are conclusive.
Based upon this review, the court may affirm, modify, enforce or set aside the
order, in whole or in part.
8. The judgment of the court is subject to
review by the appellate court of competent jurisdiction pursuant to the rules
fixed by the Supreme Court pursuant to Section
4 of Article 6 of the Nevada Constitution.
(Added to NRS by 1987, 1293; A 2013, 1745)
NRS 91.290 Appointment of Administrator as attorney to receive service of
process.
1. Every applicant for registration under
this chapter shall file with the Administrator, in the form prescribed by the
Administrator, an irrevocable consent appointing the Administrator or his or
her successor in office as the applicant’s attorney to receive service of any
lawful process in any noncriminal suit, action or proceeding against the
applicant or his or her successor, executor or administrator which arises under
this chapter or any regulation adopted or order issued under this chapter after
the consent has been filed, with the same force and validity as if served
personally on the person filing the consent.
2. When a person, including a nonresident
of this State, engages in conduct prohibited or made actionable by this
chapter, or by any regulation or order of the Administrator, the engaging in
the conduct shall be deemed to constitute the appointment of the Administrator
as the person’s attorney to receive service of any lawful process in a
noncriminal proceeding against the person, a successor or a personal
representative, which grows out of that conduct and which is brought under this
chapter or any regulation or order of the Administrator with the same force and
validity as if served personally.
3. Service under subsection 1 or 2 may be
made by leaving a copy of the process in the office of the Administrator, but
it is not effective unless:
(a) The plaintiff, who may be the Administrator
in a suit, action or proceeding instituted by the Administrator, forthwith
sends notice of the service and a copy of the process by registered mail to the
defendant or respondent at the last address known to the Administrator; and
(b) The plaintiff’s affidavit of compliance with
this subsection is filed in the case on or before the date for return of the
process, if any, or within such further time as the court allows.
(Added to NRS by 1987, 1291)
NRS 91.300 Investigations and subpoenas.
1. The Administrator may make investigations,
within or outside of this State, as the Administrator finds necessary or
appropriate to:
(a) Determine whether any person has violated, or
is about to violate, any provision of this chapter or any regulation or order
of the Administrator; or
(b) Aid in the enforcement of this chapter.
2. The Administrator may publish
information concerning any violation of this chapter or any regulation or order
of the Administrator.
3. For the purposes of any investigation
or proceeding under this chapter, the Administrator, or an officer or employee
designated by the Administrator, may administer oaths and affirmations,
subpoena witnesses, compel their attendance, take evidence and require the
production of any books, papers, correspondence, memoranda, agreements or other
records which the Administrator finds to be relevant or material to the
inquiry.
4. If a person does not give testimony or
produce the records required by the Administrator or a designated officer or
employee pursuant to an administrative subpoena, the Administrator or
designated officer or employee may apply for a court order compelling
compliance with the subpoena or the giving of the required testimony.
5. The request for an order of compliance
may be addressed to either:
(a) The District Court for the First Judicial
District;
(b) The district court for any judicial district
where service may be obtained on the person refusing to testify or produce, if
the person is within this State; or
(c) The appropriate court of the state having jurisdiction
over the person refusing to testify or produce, if the person is outside of
this State.
6. If the activities constituting an
alleged violation for which the information is sought would be a violation of
this chapter had the activities occurred in this State, the Administrator may
issue and apply to enforce subpoenas, in the manner set forth in subsection 5,
in this State at the request of a securities agency or administrator of another
state.
(Added to NRS by 1987, 1287; A 1991, 611; 2003, 3180)
NRS 91.310 Enforcement by Administrator.
1. If the Administrator believes, whether
or not based upon an investigation conducted under NRS
91.300, that any person has engaged or is about to engage in any act or
practice constituting a violation of any provision of this chapter or a regulation
adopted or order issued pursuant to its provisions, the Administrator may:
(a) Issue an order to cease and desist;
(b) Take disciplinary action against a licensed
person;
(c) Issue an order imposing a civil penalty in an
amount which may not exceed $10,000 for any single violation or $100,000 for
multiple violations in a single proceeding or a series of related proceedings;
or
(d) Initiate any of the actions specified in
subsection 2.
2. The Administrator may institute any of
the following actions in the district courts of this State, or in the
appropriate courts of another state, in addition to any legal or equitable
remedies otherwise available:
(a) An action for a declaratory judgment;
(b) An action for a prohibitory or mandatory
injunction to enjoin the violation and to ensure compliance with this chapter
or any regulation or order of the Administrator;
(c) An action for disgorgement;
(d) An action for appointment of a receiver or
conservator for the defendant or the defendant’s assets; or
(e) An action to enjoin permanently any person
from acting as a commodity broker-dealer or a commodity sales representative.
(Added to NRS by 1987, 1287)
NRS 91.320 Remedies for violation of this chapter.
1. Upon a proper showing by the
Administrator that a person has violated, or is about to violate, any provision
of this chapter or any regulation or order of the Administrator, the district
court may grant appropriate legal or equitable remedies.
2. Upon a showing of a violation of this
chapter or a regulation or order of the Administrator, the court, in addition
to traditional legal and equitable remedies, including a temporary restraining
order, a permanent or temporary prohibitory or mandatory injunction, and a writ
of prohibition or mandamus, may grant the following special remedies:
(a) The imposition of a civil penalty in an
amount which may not exceed $10,000 for any single violation or $100,000 for
multiple violations in a single proceeding or a series of related proceedings;
(b) Disgorgement;
(c) A declaratory judgment;
(d) Restitution to investors wishing restitution;
(e) The appointment of a receiver or conservator
for the defendant or the defendant’s assets; and
(f) An injunction permanently enjoining a
defendant from acting as a commodity broker-dealer or a commodity sales
representative.
3. Upon a showing that the defendant is
about to violate this chapter or a rule or order of the Administrator, the
court may grant the following remedies:
(a) A temporary restraining order;
(b) A temporary or permanent injunction;
(c) A writ of prohibition or mandamus; and
(d) An order appointing a receiver or conservator
for the defendant or the defendant’s assets.
4. A court shall not require the
Administrator to post a bond in any official action under this chapter.
(Added to NRS by 1987, 1288)
NRS 91.330 Remedies for violation of similar law of another jurisdiction.
1. Upon a proper showing by the
Administrator or a securities or commodity agency of another state that a
person has violated, or is about to violate, any provision of the commodity
code of that state or any rule or order of the Administrator or securities or
commodity agency of that state, a district court in this State may grant
appropriate legal and equitable remedies.
2. Upon a showing of a violation of the
securities or commodity act of the foreign state or a rule or order of the
Administrator or securities or commodity agency of the foreign state, the
court, in addition to traditional legal or equitable remedies, including a
temporary restraining order, a permanent or temporary prohibitory or mandatory
injunction and a writ of prohibition or mandamus, may grant the following
special remedies:
(a) Disgorgement; and
(b) The appointment of a receiver, conservator or
ancillary receiver or conservator for the defendant or the defendant’s assets
located in this State.
3. Upon a showing that the defendant is
about to violate the securities or commodity act of the foreign state or a rule
or order of the Administrator or securities or commodity agency of the foreign
state, the court may grant the following remedies:
(a) A temporary restraining order;
(b) A temporary or permanent injunction;
(c) A writ of prohibition or mandamus; and
(d) An order appointing a receiver, conservator
or ancillary receiver or conservator for the defendant or the defendant’s
assets located in this State.
(Added to NRS by 1987, 1288)
NRS 91.340 Criminal penalties.
1. Except as otherwise provided in
subsection 2, a person who willfully violates:
(a) Any provision of this chapter; or
(b) Any regulation or order of the Administrator
under this chapter,
Ê is guilty of
a category C felony and shall be punished as provided in NRS 193.130, or by a fine of not more than
$20,000, or by both fine and the punishment provided in NRS 193.130, for each violation. In
addition to any other penalty, the court shall order the person to pay
restitution.
2. A person convicted of violating a
regulation or order under this chapter may be fined, but must not be
imprisoned, if the person proves the person had no knowledge of the regulation
or order.
3. The Administrator may refer such
evidence as is available concerning violations of this chapter or any
regulation or order of the Administrator to the Attorney General or the proper
district attorney, who may, with or without such a reference from the
Administrator, institute the appropriate criminal proceeding under this
chapter.
(Added to NRS by 1987, 1289; A 1993, 938; 1995, 1242)
