Chapter 59 — Securities
Regulation
2011 EDITION
SECURITIES REGULATION
CORPORATIONS AND PARTNERSHIPS
OREGON SECURITIES LAW
(Generally)
59.005 Short
title
59.015 Definitions
for Oregon Securities Law
59.025 Securities
exempt from registration
59.035 Transactions
exempt from registration
59.045 Authority
of director to deny, withdraw or condition exemptions
59.049 Federal
covered securities exempt from registration; notice filings; fees; rules
59.051 Statutory
references to federal law
(Registration of Securities)
59.055 Conditions
of offer and sale of securities
59.065 Registration
procedures; application; fees; rules
59.070 Amended
registration application; when required; fees
59.075 Registration
by director; expiration; renewal; fee; rules
59.085 Conditions
imposed on registration
59.095 Approval
of plan to issue securities in exchange for other securities, claims or
property
59.105 Denial,
suspension or revocation of registration
59.115 Liability
in connection with sale or successful solicitation of sale of securities;
recovery by purchaser; limitations on proceeding; attorney fees
59.125 Effect
of notice of offer to repay purchaser; exceptions; registration of transaction
59.127 Liability
in connection with purchase or successful solicitation of purchase of
securities; recovery by seller; limitations on proceeding; attorney fees
59.131 Effect
of notice of intent to return unlawfully purchased security; contents of
notice; registration of transaction
59.135 Fraud
and deceit with respect to securities or securities business
59.137 Liability
in connection with violation of ORS 59.135; damages; defense; attorney fees;
limitations on proceeding
59.145 Effect
of notice filing, registration or license
59.155 Director
is agent for service of process; manner of service; exceptions
(Licensing of Broker-Dealers, Investment
Advisers and Salespersons)
59.165 Licensing
of broker-dealers, investment advisers and salespersons required; rules
59.175 Procedures
for notice filing and licensing; rules; examination; bond, letter of credit or
other security; filing trade name or assumed business name; fees
59.185 Expiration
of license; rules for renewal; change in personnel
59.195 Licensees
to keep records; inspection; filing of financial reports
59.205 Grounds
for denying, suspending, revoking or imposing condition or restriction on
license
59.215 Action
against applicant or licensee for act or omission of associate; exceptions
59.225 Cancellation
of license or application; application for withdrawal; effect of suspension or
revocation
(Powers of Director)
59.235 General
supervision over persons dealing in securities
59.245 Investigations;
publicity with respect to violations; cease and desist order
59.255 Enjoining
violations; fine; appointment of receiver; attorney fees; damages to private
parties
59.265 Procedure
when assets or capital of broker-dealer or investment adviser found impaired;
involuntary liquidation
59.275 Burden
of proof
59.285 Rules;
financial statements
59.295 Notice
of orders; hearings on orders
59.305 Judicial
review of orders
59.315 Oaths
and subpoenas in proceedings before director
59.325 Certified
copies of documents; fee; effect of certification
(Enforcement by Attorney General)
59.331 Scope
of Attorney General powers; consent of director; powers of circuit court;
damages, restitution, disgorgement and other penalties
(Miscellaneous Provisions)
59.335 Application
of certain sections
59.345 When
offer to sell or buy is made in this state
59.350 Treatment
of certain transactions
59.355 Corporations
subject to other laws
59.365 Common-law
and statutory rights not limited
59.370 Limitation
on liability for good faith act or omission; reports regarding salespersons or
investment adviser representatives; limitation on liability related to reports;
rules
(Required Reports and Statements)
59.451 Prohibition
against filing false statement by person under investigation or examination
UNIFORM TOD SECURITY REGISTRATION ACT
59.535 Definitions
for ORS 59.535 to 59.585
59.540 Registration
in beneficiary form; sole or joint tenancy ownership
59.545 Registration
in beneficiary form; applicable law
59.550 Origination
of registration in beneficiary form
59.555 Form
of registration in beneficiary form
59.560 Effect
of registration in beneficiary form
59.565 Ownership
on death of owner
59.570 Protection
of registering entity
59.575 Nontestamentary transfer on death
59.580 Terms,
conditions and forms for registration
59.585 Short
title; rules of construction
PROHIBITION OF CERTAIN SECURITY
TRANSACTIONS
59.710 Definitions
for ORS 59.710 to 59.830
59.720 Application
of ORS 59.710 to 59.830 to real estate contracts and brokers
59.730 Making
contract involving securities without intending a bona fide sale or purchase
59.740 Conducting
bucket shop or repeatedly making forbidden contracts
59.750 Receipt
or communication of prices for purpose of forbidden contract
59.760 Reporting
false sale of securities with intent to deceive
59.770 Manipulating
market by pretended sales
59.780 Broker’s
trading against customer’s order; violation of ORS 59.780 to 59.800 by member
of broker’s firm
59.790 Insolvent
broker-dealer receiving securities from customer
59.800 Pledge
or sale by broker-dealer of customer’s securities
59.810 Delivery
to customer of true statement of purchase or sale made by broker
59.820 Actions
against corporation for second violation
59.830 Self-incrimination
by witness; immunity from prosecution
PENALTIES
59.991 Criminal
penalties for ORS 59.005 to 59.451 and 59.710 to 59.830; exceptions
59.995 Civil
penalties for ORS 59.005 to 59.451 and 59.710 to 59.830; exceptions
OREGON SECURITIES LAW
(Generally)
59.005 Short title.
ORS 59.005 to 59.451, 59.991 and 59.995 may be cited as the Oregon Securities
Law. [1967 c.537 §2]
59.010
[Repealed by 1967 c.537 §36]
59.015 Definitions for Oregon Securities
Law. As used in the Oregon Securities Law,
unless the context otherwise requires:
(1)
“Broker-dealer” means a person who engages, all or part of the time, in
effecting transactions in securities for the account of others or for the
person’s own account. “Broker-dealer” does not include:
(a)
An issuer effecting sales in its own securities;
(b)
The following institutions:
(A)
A financial institution or trust company, as defined in ORS 706.008; or
(B)
A financial holding company or a bank holding company, as defined in ORS
706.008, holding an institution described in subparagraph (A) of this
paragraph; a savings and loan holding company as defined in section 408 of the
National Housing Act, 12 U.S.C. section 1730a, holding an association described
in subparagraph (A) of this paragraph; the subsidiaries and affiliates of the
financial holding company, bank holding company or savings and loan holding
company; or subsidiaries and affiliates of institutions described in
subparagraph (A) of this paragraph, if the appropriate statutory regulatory
authority is exercising control over, or is regulating or supervising the
person in the sale of securities in accord with the purposes of the Oregon
Securities Law;
(c)
A person who has no place of business in this state effecting transactions in
this state exclusively with broker-dealers;
(d)
A person effecting sales exempted by ORS 59.035;
(e)
A salesperson;
(f)
A person effecting sales of securities owned by the person registered for sale
pursuant to ORS 59.065;
(g)
A person effecting sales of securities exempted by ORS 59.025 (7);
(h)
A person licensed as a mortgage banker or a mortgage broker under ORS 86A.095
to 86A.198 when effecting sales of securities involving real estate paper
registered for sale pursuant to ORS 59.065; or
(i) A person designated by rule or order by the director.
(2)
“Control” means the possession, directly or indirectly, of the power to direct
or cause the direction of the management and policies of a person, whether
through the ownership of voting securities, by contract, or otherwise.
(3)
“Director” means the Director of the Department of Consumer and Business
Services.
(4)
“Federal covered investment adviser” means a person who is registered as an
investment adviser pursuant to section 203 of the Investment Advisers Act of
1940, as amended.
(5)
“Federal covered security” means any security that is a covered security under
section 18 of the Securities Act of 1933, as amended, and for which such Act
provides that the director may require filing of a notice and payment of a fee.
(6)
“Fraud,” “deceit” and “defraud” are not limited to common-law deceit.
(7)
“Guaranteed” means guaranteed as to payment of principal, interest or
dividends.
(8)(a)
“Investment adviser representative” means any partner, officer, director or
person occupying a similar status or performing a similar function, or other
individual, except clerical or ministerial personnel, who is employed by or
associated with:
(A)
A state investment adviser that is licensed or required to be licensed in this
state and who does any of the following:
(i) Makes any recommendations or otherwise renders advice
regarding securities;
(ii)
Manages accounts or portfolios of clients;
(iii)
Determines which recommendation or advice regarding securities should be given;
(iv)
Solicits, offers or negotiates for the sale of or sells investment advisory
services; or
(v)
Supervises employees acting under this subparagraph; or
(B)
A federal covered investment adviser, subject to the limitations of section
203A of the Investment Advisers Act of 1940, as amended, as the director may
designate by rule or order.
(b)
“Investment adviser representative” does not include a person designated by
rule or order of the director.
(9)
“Issuer” means a person who issues, proposes to issue or has issued a security
and includes an issuer to be formed. With respect to certificates of deposit,
voting-trust certificates or collateral-trust certificates, or with respect to
certificates of interest or shares in an unincorporated investment trust not
having a board of directors or persons performing similar functions or of the
fixed, restricted management or unit type, the “issuer” is the person or
persons performing the acts and assuming the duties of depositor or manager
pursuant to the provisions of the trust or other instrument or agreement under
which the security is issued.
(10)
“License” means a license as provided under the Oregon Securities Law.
(11)
“Mortgage banker” means a mortgage banker as defined in ORS 86A.100.
(12)
“Mortgage broker” means a mortgage broker as defined in ORS 86A.100.
(13)
“Offer” or “offer to sell” includes every attempt or offer to dispose of, or
solicitation of an offer to buy, a security or interest in a security for
value. Every sale or offer of a warrant or right to purchase or subscribe to
another security of the same or another issuer, as well as every sale or offer
of a security which gives the holder a present or future right or privilege to
convert into another security of the same or another issuer, is considered to
include an offer of the other security.
(14)
“Person” includes an individual, a joint venture, a partnership, a cooperative,
a limited liability company, an association, a joint stock company, a
corporation, a trust, an unincorporated organization or a government or
political subdivision of a government.
(15)
“Real estate paper” means any obligation secured or purportedly secured by an
interest in real property. Real estate paper includes, but is not limited to,
mortgage-backed securities, collateralized mortgage obligations, and real
estate mortgage investment conduits.
(16)
“Registered” means registered as provided in the Oregon Securities Law.
(17)(a)
“Sale” or “sell” includes every contract of sale of, contract to sell, or
disposition of, a security or interest in a security for value. Any security
given or delivered with, or as a bonus on account of, a purchase of securities
or any other thing shall constitute a part of the subject of the purchase and
shall have been offered and sold for value. A gift of assessable stock by or
for any issuer or promoter shall constitute a sale.
(b)
For purposes of the authority of the director under ORS 59.245 and 59.255, the
terms “sale” and “sell” include the terms “offer” and “offer to sell.”
(c)
“Sale” and “sell” do not include:
(A)
A bona fide pledge or loan of securities;
(B)
A bona fide security dividend, whether the corporation distributing the
dividend is the issuer of the security or not, if nothing of value is given by
the recipients for the dividend other than payments in connection with the
elimination of fractional shares; or
(C)
An act incident to a judicially approved reorganization in which a security is
issued in exchange for one or more outstanding securities, claims or property
interests, or partly in such exchange and partly for cash.
(18)(a)
“Salesperson” means a person, other than a broker-dealer, who represents or
purports to represent a broker-dealer, issuer or owner of securities in
effecting or attempting to effect in any manner transactions in securities.
(b)
“Salesperson” does not include:
(A)
A person who represents an issuer in effecting sales in a security exempted by
ORS 59.025;
(B)
A person who represents an issuer in effecting sales exempted by ORS 59.035;
(C)
A person who represents an issuer in effecting sales with existing partners or
directors of the issuer, if no commission or other remuneration is paid or
given directly or indirectly for soliciting any person in this state;
(D)
An employee of an institution or organization described in subsection (1)(b) of
this section to the extent the employee is not a dual employee of the institution
and a broker-dealer;
(E)
A person effecting transactions in this state limited to those transactions
described in section 15(h)(2) and (3) of the Securities Exchange Act of 1934,
as amended; or
(F)
A person designated by rule or order by the director.
(c)
A person who is a partner, director or officer of a broker-dealer, issuer or
owner of securities, or a person who occupies a similar status or performing
similar functions, is a “salesperson” only if the person otherwise comes within
this definition.
(19)(a)
“Security” means a note, stock, treasury stock, bond, debenture, evidence of
indebtedness, certificate of interest or participation in a pension plan or
profit-sharing agreement, collateral-trust certificate, preorganization
certificate or subscription, transferable share, investment contract,
voting-trust certificate, variable annuity, certificate of deposit for a
security, certificate of interest or participation in an oil, gas, or mining
title or lease or in payments out of production under such title or lease, real
estate paper sold by a broker-dealer, mortgage banker, mortgage broker or a
person described in subsection (1)(b) of this section to persons other than
persons enumerated in ORS 59.035 (4), or, in general, any interest or instrument
commonly known as a “security,” or any certificate of interest or participation
in, temporary or interim certificates for, receipt for, guarantee of, or
warrant or right to subscribe to or purchase any of the foregoing.
(b)
“Security” does not include:
(A)
An insurance or endowment policy or annuity contract, other than a variable
annuity contract, under which an insurance company promises to pay a fixed or
variable sum of money either in a lump sum or periodically for life or some
other specified period;
(B)
A beneficial interest in a voluntary inter vivos
trust unless the trust is created solely for the purpose of voting or is part
of an attempt to evade the provisions of ORS 59.005 to 59.451; or
(C)
A beneficial interest in a testamentary trust.
(20)(a)
“State investment adviser” means a person who, for compensation:
(A)
Engages all or part of the time of the person, in this state, in the business
of advising others, either directly or by mail or through publication or
writing, as to the value of securities or as to the advisability of investing
in, purchasing or selling securities;
(B)
Engages all or part of the time of the person, in this state, in the business
of managing an investment or trading account in securities for other persons;
or
(C)
Issues or promulgates, as part of a regular business in this state, analyses or
reports concerning securities.
(b)
“State investment adviser” does not include:
(A)
An investment adviser representative;
(B)
An institution or organization described in subsection (1)(b) of this section;
(C)
A licensed broker-dealer whose performance of investment advisory services is
solely incidental to the conduct of business as a broker-dealer and who
receives no special compensation for such services;
(D)
A salesperson licensed to a broker-dealer whose performance of investment
advisory services is solely incidental to that person’s activities as a
salesperson and who receives no special compensation for such services;
(E)
A publisher of or contributor to a bona fide newspaper, newsmagazine,
investment manual or service, or business or financial publication of general,
regular and paid circulation;
(F)
A person whose only clients are federal covered investment advisers, state
investment advisers, broker-dealers, mortgage bankers, mortgage brokers, banks,
savings institutions or trust companies, insurance companies, investment
companies as defined in the Investment Company Act of 1940, as amended, pension
or profit-sharing trusts, or other financial institutions or institutional
buyers, whether acting for themselves or as trustees;
(G)
A duly licensed or registered lawyer, engineer or accountant whose performance
of investment advisory services is solely incidental to the practice of the
profession;
(H)
A person whose advice, analyses or reports relate only to securities exempted
by ORS 59.025 (1);
(I)
A federal covered investment adviser in compliance with ORS 59.165 (7);
(J)
A person, advising others, that has no place of business in this state and
during the preceding 12-month period has had fewer than six clients, other than
those persons included in subparagraph (F) of this paragraph, who are residents
of this state; or
(K)
Such other persons as the director may by rule or order designate. [1967 c.537 §3;
1971 c.624 §1; 1971 c.641 §1; 1973 c.366 §1; 1975 c.491 §1; 1985 c.349 §1; 1987
c.414 §§69, 69a; 1987 c.603 §1; 1989 c.197 §1; 1991 c.5 §18; 1993 c.158 §1;
1993 c.508 §27; 1993 c.744 §13; 1995 c.93 §26; 1995 c.622 §11; 1997 c.631 §375;
1997 c.772 §1; 1999 c.53 §1; 1999 c.315 §1; 2001 c.104 §14; 2001 c.377 §39a;
2003 c.270 §1; 2007 c.393 §1; 2009 c.259 §20]
59.020
[Repealed by 1967 c.537 §36]
59.025 Securities exempt from
registration. The following securities are exempt
from ORS 59.049 and 59.055:
(1)(a)
A security issued or guaranteed by the United States or by a state, a political
subdivision of a state or an agency or other instrumentality of any of the
foregoing.
(b)
Any other security offered in connection with or as part of the security set
forth in paragraph (a) of this subsection if the security cannot be severed and
sold separately from the security in paragraph (a) of this subsection.
(2)
A security issued or guaranteed by a foreign government with which the United
States is at the time of the sale maintaining diplomatic relations, or by a
state, province or political subdivision thereof having the power of taxation
or assessment, if the security is recognized as a valid obligation by such
foreign government or state, province or political subdivision thereof.
(3)
A security that represents an interest in or a direct obligation of or is
guaranteed by a national bank, federal savings and loan association, federal
credit union or federal land bank or joint stock land bank or national farm
loan association.
(4)
Any of the following securities:
(a)
A security listed or approved for listing upon notice of issuance on the New
York Stock Exchange, the American Stock Exchange, the Midwest Stock Exchange,
the Pacific Stock Exchange or any other exchange recognized by rule of the
Director of the Department of Consumer and Business Services;
(b)
A security designated or approved for designation upon notice of issuance under
the National Association of Securities Dealers Automated Quotation System, Inc.
National Market System;
(c)
Any other security of the issuer of a security listed or designated under
paragraph (a) or (b) of this subsection, that is of senior or substantially
equal rank to the listed or designated security;
(d)
A security issuable under rights or warrants listed or approved under paragraph
(a), (b) or (c) of this subsection; or
(e)
A warrant or right to purchase or subscribe to any security referred to in
paragraph (a), (b), (c) or (d) of this subsection.
(5)
A security maintaining a rating approved by the director in a recognized
securities manual.
(6)
A security that represents an interest in or a direct obligation of and that
has been or is to be issued by a bank, trust company, savings and loan
association, or credit union, that is subject to the examination, supervision
and control of a regulatory agency of this state.
(7)
Commercial paper issued, given or acquired in a bona fide way in the ordinary
course of legitimate business, trade or commerce, when the commercial paper is
not made the subject of a public offering.
(8)
A security, the issuance of which is under supervision, regulation or control
by the Public Utility Commission of this state, if the Public Utility
Commission is exercising control over, or is regulating or supervising, the
issuer thereof.
(9)
Stock or membership certificates issued by an agricultural cooperative
corporation or irrigation association when the stock is issued to evidence
membership in the cooperative or association or as a patronage dividend and certificates
issued to members or patrons by such a cooperative or association evidencing
their respective interests in reserves or as patronage dividends. This
exemption shall not apply to any cooperative or association that expects to
engage in or is engaged in the production, processing or marketing of forest
products.
(10)
Stock or membership certificates issued by a fishing cooperative corporation,
when the stock or certificates are issued to members of the cooperative
corporation either for the purpose of showing membership in the cooperative
corporation or for the purpose of showing their respective interests in
reserves or patronage dividends. For purposes of this subsection, a fishing
cooperative corporation is an association of persons engaged commercially in
harvesting, marketing or processing products of aquatic life from fresh and
salt water, that is formed or operated under ORS chapter 62 with the purpose of
commercially harvesting, marketing or processing such products or engaging in
group bargaining with respect to the sale of such products.
(11)
Stock or membership certificates issued by an association of consumers formed
or operated under ORS chapter 62 with the purpose of providing groceries to its
consumer members, when the stock or certificates are issued to members either
for the purpose of showing membership in the association or for the purpose of
showing their respective interests in patronage dividends or reserves. For
purposes of the exemption under this subsection:
(a)
The price of stock or a membership certificate may not exceed $300.
(b)
The benefits shall be limited to discounts on purchases or patronage dividends,
or any combination of such discounts and dividends.
(c)
The association may issue only one stock or membership certificate to an
individual.
(12)
Any security issued in connection with an employee’s stock purchase, savings,
pension, profit sharing or similar employee’s benefit plan, provided:
(a)
That the plan meets the requirements for qualification under section 401 of the
Internal Revenue Code of 1986; and
(b)
That the terms of the plan are fair, just and equitable to employees under
rules of the director.
(13)
Any security issued by a person:
(a)
Organized and operated exclusively for religious, educational, benevolent,
fraternal, charitable or reformatory purpose and not for pecuniary profit, and
no part of the net earnings of which inures to the benefit of any person,
private stockholder, or individual; and
(b)
Designated by rule of the director.
(14)
Any other security exempted by rule of the director. [1967 c.537 §4; 1969 c.688
§1; 1973 c.428 §9; 1975 c.491 §2; 1985 c.193 §1; 1985 c.349 §2a; 1987 c.603 §1a;
1987 c.677 §9; 1989 c.171 §6; 1989 c.197 §2; 1991 c.67 §10; 1993 c.18 §14; 1997
c.772 §2]
59.030 [Repealed
by 1967 c.537 §36]
59.035 Transactions exempt from
registration. The following transactions are exempt
from ORS 59.049 and 59.055 if they are not part of an attempt to evade
fraudulently any provision of the Oregon Securities Law:
(1)
Any transaction by a sheriff, marshal or court appointed fiduciary.
(2)
An isolated nonissuer transaction in this state,
whether effected through a broker-dealer or not.
(3)
Any transaction by an issuer in its securities pursuant to a pro rata offering
to its existing security holders, if:
(a)
No commission or remuneration, other than a standby fee, is paid or given
directly or indirectly in connection with the transaction; and
(b)
The issuer has not had an effective registration under the Oregon Securities
Law nor has used this exemption within one year prior to the date of the
offering or sale.
(4)
Any offer, sale, transfer or delivery of securities to a bank, savings
institution, trust company, insurance company, investment company, pension or
profit-sharing trust, or other financial institution or institutional buyer
(including but not limited to the Federal National Mortgage Association, the
Federal Home Loan Mortgage Corporation, the Federal Housing Administration, the
United States Department of Veterans Affairs and the Government National
Mortgage Association), or to a broker-dealer, mortgage broker or mortgage
banker, whether the purchaser is acting for itself or in a fiduciary capacity
when the purchaser has discretionary authority to make investment decisions.
(5)
Any transaction by an offeror with an accredited
investor as defined in section 2 (15)(i) or (ii) of
the Securities Act of 1933, as amended, or rules of the Director of the
Department of Consumer and Business Services, but only if there is no public
advertising or general solicitation in connection with the transaction.
(6)
The issue and delivery of any security in exchange for any other security of
the same issuer pursuant to a right of conversion entitling the holder of the
security surrendered in exchange to make the conversion without the payment of
additional consideration, if the security surrendered was, when issued,
convertible and registered or exempt from registration.
(7)
Any transaction in a vendor’s interest in a land sale contract, or a bond or
note secured by a mortgage or trust deed upon real estate, so long as the
entire vendor’s interest or mortgage or trust deed, with all the bonds or notes
secured thereby, are sold to a single purchaser, in a single sale.
(8)
Agency or principal sales by licensed broker-dealers, executed upon customers’
orders on any exchange or on the over-the-counter market, but not the
solicitation of such orders, where there is no intent to avoid the provisions
of the Oregon Securities Law and a public offering is not involved. Such
broker-dealers shall keep and maintain, for two years from the date of the
order, a record of all the sales executed upon customers’ orders, giving the
name and address of each customer, the name and identity of the security involved,
the dates of the sales, the price paid or received for the security, and the
commission or other expenses charged to the customer.
(9)
The offer or sale by a licensed broker-dealer of any security acquired in the
ordinary and usual course of business, when such security is a part of an issue
which has been registered in whole or in part, if the offer or sale is made in
good faith and not directly or indirectly for the benefit of the issuer or for
the promotion of any scheme or enterprise effecting a violation or an evasion
of any provisions of the Oregon Securities Law, unless:
(a)
The registration has been revoked or suspended; or
(b)
The continued sale of the security has been enjoined.
(10)
The offer or sale by licensed broker-dealer, acting either as principal or
agent, of securities theretofore sold and distributed to the public, if the
sale meets the requirements of paragraphs (a), (b) and (c) or (a), (b) and (d)
of this subsection:
(a)
Such securities are sold at prices reasonably related to the current market
price thereof at the time of sale, and, if such licensed broker-dealer is
acting as agent, the commission collected by such licensed broker-dealer on
account of the sale thereof is not in excess of usual and customary commissions
collected with respect to securities and transactions having comparable
characteristics;
(b)
Such securities do not constitute an unsold allotment to or subscription by
such broker-dealer as a participant in the distribution of such securities by
the issuer or by or through an underwriter;
(c)
The issuer is listed in any recognized securities manual approved by rule by
the director, and the listing contains the names of the issuer’s officers and
directors, a balance sheet of the issuer as of a date not more than 18 months
prior to the date of such sale, and a profit and loss statement for either the
fiscal year preceding the date of the balance sheet or the most recent year of
operations; and
(d)
The securities are authorized for quotation on a nationwide automated
quotations system approved by rule or order of the director.
(11)
An offer, but not the sale, of a security meeting either of the following
descriptions:
(a)
A security for which registration statements have been filed under both the
Oregon Securities Law and the Securities Act of 1933, as amended, if no stop or
refusal order or order under ORS 59.105 is in effect and no public proceeding
or examination looking toward such an order is pending. However, an offer for
such a security may not be accepted until the securities have been registered
as provided in the Oregon Securities Law.
(b)
A security for which a registration statement has been filed under the Oregon
Securities Law and the offer is allowed by the director. However, an offer for
such a security may not be accepted until the securities have been registered
as provided in the Oregon Securities Law.
(12)(a)
Any transactions in securities by an offeror within
or without this state that meet all of the requirements of subparagraph (A) or
(B) of this paragraph and all of the requirements of subparagraphs (C), (D) and
(E) of this paragraph:
(A)
When the offeror is an issuer, the transactions
result in not more than 10 purchasers within this state of securities of the
issuer during any 12 consecutive months.
(B)
When the offeror is a nonissuer
the securities must have been bought and held for at least 12 consecutive
months and the transactions result in not more than 10 purchasers within this
state of securities from the nonissuer during any 12 consecutive
months.
(C)
No commission or other remuneration is paid or given directly or indirectly in
connection with the offer or sale of the securities.
(D)
No public advertising or general solicitation is used in connection with any
transaction under this exemption.
(E)
At the time of any transaction under this exemption the offeror
does not have under the Oregon Securities Law an application for registration
or an effective registration of securities which are part of the same offering.
(b)
In connection with transactions under paragraph (a) of this subsection:
(A)
Purchasers of securities of the offeror registered
under ORS 59.065, exempt under ORS 59.025, exempt under any other subsection of
this section, or for which a notice has been filed under ORS 59.049, are not
counted as purchasers under this exemption.
(B)
Repeat transactions with persons who are counted as purchasers within Oregon
under paragraph (a) of this subsection do not increase the number of
purchasers. However, a purchaser remains a purchaser for 12 months following
the month of the last sale to that purchaser.
(C)
No limitations are placed on the number of transactions or purchasers without
this state. No limitations are placed on the number of offers under this
exemption.
(13)
A transaction with security holders, pursuant to a statutory vote by such
security holders on a merger, consolidation, partial or complete liquidation,
reclassification of securities, plan of exchange or sale of assets, in
consideration of the issuance of securities of another issuer.
(14)
Capital stock issued by a professional corporation organized under ORS chapter
58.
(15)
Any other transaction exempted by rule of the director. [1967 c.537 §5; 1971
c.624 §2; 1973 c.823 §§91,156; 1985 c.349 §3; 1987 c.603 §2; 1989 c.197 §3;
1991 c.67 §11; 1997 c.772 §3; 2001 c.32 §1]
59.045 Authority of director to deny,
withdraw or condition exemptions. (1) The
Director of the Department of Consumer and Business Services may by rule or
order, as to any security or any type of security transaction:
(a)
Deny, withdraw or condition the exemptions allowed by ORS 59.025 and 59.035 if,
in the director’s opinion, the further sale of the security in this state would
work a fraud or imposition upon the purchaser.
(b)
Waive the conditions of ORS 59.035 (3)(b) and (12)(a)(B).
(c)
Provide which exemptions may or may not be used in connection with other
exemptions or provide procedures for determining which offerings are or are not
integrated with other offerings within the same or other exemptions.
(2)
The director may by order withdraw, condition or deny the use of any exemption
by a person if the director has reason to believe that the person has engaged
in or is about to engage in an act or practice constituting a violation of the
Oregon Securities Law or that the use of any exemption by that person would
work a fraud or imposition on purchasers.
(3)
No person shall be liable under the Oregon Securities Law by reason of the
withdrawal of an exemption under this section if that person sustains the
burden of proof that that person did not know, and in the exercise of
reasonable care could not have known of the withdrawal. [1967 c.537 §6; 1973
c.366 §3; 1985 c.349 §4]
59.047 [1981
c.292 §2; 1985 c.349 §5; repealed by 1987 c.603 §30]
59.049 Federal covered securities exempt
from registration; notice filings; fees; rules.
Federal covered securities may be offered and sold in this state without
registration, subject to the following:
(1)
Unless otherwise exempt from registration under ORS 59.025 or 59.035, any
federal covered security that is subject to section 18(b)(2) of the Securities
Act of 1933, as amended, may be offered and sold only upon a filing of a notice
with, and the payment of the required fee to, the Director of the Department of
Consumer and Business Services. In lieu of the notice, an issuer may file a
copy of its registration statement as filed with the Securities and Exchange
Commission together with fees required under this subsection. The form of
notice shall be prescribed by the director. The director shall set the amount
of the fee by rule. The fee is not refundable. The effective date of the notice
is the later of the date the notice is received by the director or the date
specified by the filer of the notice.
(2)
Unless otherwise exempt from registration under ORS 59.025 or 59.035, any
federal covered security that is subject to section 18(b)(3) or (4), other than
section 18(b)(4)(D), of the Securities Act of 1933, as amended, may be offered
and sold only upon a filing of a notice with, and the payment of the required
fee to, the director. The form of notice shall be prescribed by the director.
The director shall set the fee by rule in an amount per $1,000 of the aggregate
price of the securities which are to be offered in this state. The fee is not
refundable. The effective date of the notice is the later of the date the
notice is received by the director or the date specified by the filer of the
notice.
(3)
Unless otherwise exempt from registration under ORS 59.025 or 59.035, any
federal covered security that is subject to section 18(b)(4)(D) of the
Securities Act of 1933, as amended, may be offered and sold only upon a filing
of a notice with, and the payment of the required fee to, the director, not later
than 15 days after the first sale of such federal covered security in this
state. The notice shall be filed on Securities and Exchange Commission Form D
or on a form of notice prescribed by the director. The director shall set the
fee by rule in an amount per $1,000 of the aggregate price of the securities
which are to be offered in this state. The fee is not refundable. The effective
date of the notice is the later of the date the notice is received by the
director or the date specified by the filer of the notice.
(4)(a)
The director shall set the fees described in subsections (1) to (3) of this
section in an amount that the director determines is equal as nearly as
possible to the national midpoint for similar fees charged by all other state
regulatory agencies within the United States responsible for regulating
securities.
(b)
The director may adjust the amount of a fee described in subsections (1) to (3)
of this section every two years to reflect changes in the national midpoint for
a similar fee.
(c)
In determining the national midpoint for similar fees under this section, the
director may consider national midpoints determined by the North American
Securities Administrators Association, the National Association of Securities
Dealers or the United States Securities and Exchange Commission.
(5)
The director may issue an order suspending the offer and sale of a federal
covered security if the director finds that there is a failure to comply with
any requirement under this section.
(6)(a)
The filer of a notice under subsections (1) to (3) of this section shall amend
the notice when there is a change in the name of the offering or, in the case
of offerings for which notice is filed pursuant to subsection (2) or (3) of
this section, when there is an increase in the aggregate price of the
securities which are to be offered in this state. There is no fee required for
an amendment that does not increase the aggregate offering amount. Notices
amending the aggregate offering amount shall include the fee calculated in
accordance with subsection (2) or (3) of this section, less amounts previously
paid under the prior notice filing, but the fee may not be less than $100. The
fee is not refundable.
(b)
If an issuer or person sells federal covered securities in this state for a
price in excess of the aggregate price for which fees were initially paid under
this section, the seller shall pay a fee of three times the difference between
the initial fee paid and the fee required under this section for the federal
covered securities sold in this state. The additional fee may not be less than
$100. The fee is not refundable.
(7)
The director, by rule or otherwise, may waive any or all of the provisions of
this section. [1997 c.772 §6; 2001 c.104 §15; 2003 c.270 §2; 2003 c.785 §1]
59.050 [1981
c.292 §3; 1985 c.349 §6; repealed by 1987 c.603 §30]
59.051 Statutory references to federal
law. References in ORS 59.005 to 59.451,
59.991 and 59.995 to federal statutes or federal regulations shall be construed
to refer to those statutes or regulations as they are in effect on April 19,
1999. [1999 c.53 §8]
59.052 [1981
c.292 §4; 1985 c.349 §7; repealed by 1987 c.603 §30]
(Registration of Securities)
59.055 Conditions of offer and sale of
securities. It is unlawful for any person to offer
or sell any security in this state, unless:
(1)
The security is registered and the offer or sale is not in violation of any
rule or order of the Director of the Department of Consumer and Business
Services or any condition, limitation or restriction imposed by the director
upon such registration;
(2)
The security is exempt under ORS 59.025 or the sale is exempt under ORS 59.035;
or
(3)
The security is a federal covered security for which a notice has been filed
and fees have been paid under ORS 59.049. [1967 c.537 §7; 1997 c.772 §4]
59.065 Registration procedures;
application; fees; rules. (1) The Director of the
Department of Consumer and Business Services by rule shall establish procedures
for registering securities. The director may coordinate registration in this
state with any federal securities Act or national registration system.
(2)
Every registration application submitted shall be accompanied by a fee. The
director shall set the fee by rule in an amount per $1,000 of the aggregate
price of the securities that are to be offered in this state. The fee is not
refundable.
(3)(a)
The director shall set the fee described in subsection (2) of this section in
an amount that the director determines is equal as nearly as possible to the
national midpoint for similar fees charged by all other state regulatory
agencies within the United States responsible for regulating securities.
(b)
The director may adjust the amount of the fee described in subsection (2) of
this section every two years to reflect changes in the national midpoint for a
similar fee.
(c)
In determining the national midpoint for similar fees under this section, the
director may consider national midpoints determined by the North American
Securities Administrators Association, the National Association of Securities
Dealers or the United States Securities and Exchange Commission.
(4)
If a registrant sells securities in Oregon in excess of the quantity registered
or for a price in excess of the aggregate price for which fees were initially
paid, the registrant may obtain registration of the excess securities by paying
three times the difference between the initial fee paid and the fee required
under subsection (2) of this section for the securities sold in Oregon. The
additional fee may not be less than $100. Registration of the excess securities
shall be effective retroactively to the date of sale. [1967 c.537 §8; 1973
c.366 §4; 1985 c.349 §8; 1987 c.603 §3; 1997 c.772 §7; 2003 c.270 §3; 2003
c.785 §2]
59.070 Amended registration application;
when required; fees. (1) A registrant under ORS
59.065 shall amend the registration application submitted under ORS 59.065 when
there are material changes in the terms and conditions of the original
registration. “Material changes in the terms and conditions of the original
registration” includes an increase in the aggregate amount of securities to be
offered in Oregon, change in the type of securities or change in the identity
of the issuer or owner.
(2)
Applications for an amendment to increase the aggregate amount of securities to
be offered in Oregon shall include the fee calculated in accordance with ORS
59.065 (2), less amounts previously paid under the prior registration. The fee
may not be less than $100.
(3)
This section does not relieve a registrant from the obligation to notify the
director concerning material changes in facts and circumstances concerning the
offering. [1985 c.349 §10; 1987 c.603 §4; 2003 c.785 §3]
59.075 Registration by director; expiration;
renewal; fee; rules. (1) The Director of the
Department of Consumer and Business Services shall register the securities
unless the director finds that registration should be denied on one or more of
the grounds specified in ORS 59.105. The securities may thereafter be sold in
accordance with the registration and any conditions, limitations or
restrictions imposed by the director.
(2)
Every registration of securities and every notice filed under ORS 59.049 shall
expire one year after the date of the registration or effective date of the
notice. The director may establish a different expiration date for purposes of
coordination with any national registration or notice filing system. When a
registration or notice filing is amended, the registration or notice filing
expires one year after the date of the initial registration or effective date
of the notice filing unless the amended registration or notice filing provides
otherwise.
(3)
The director by rule shall establish procedures for renewing registrations of
securities and notice filings.
(4)
Every renewal application and every renewal of a notice filing shall be
accompanied by a fee computed in accordance with ORS 59.049 or ORS 59.065 (2),
as applicable. The fee is not refundable.
(5)
If the director finds that no ground for suspension or revocation of the
registration exists under ORS 59.105, the director shall renew the
registration, subject to any conditions, limitations and restrictions imposed
by the director. The renewed registration or notice filing shall expire one year
after the date of expiration of the original registration, or effective date of
the notice filing or last renewal thereof. The director may establish a
different expiration date for purposes of coordination with any national
registration or notice filing system. [1967 c.537 §9; 1985 c.349 §12; 1987
c.603 §5; 1997 c.772 §8]
59.078 [1973
c.366 §8; repealed by 1987 c.603 §30]
59.085 Conditions imposed on registration.
The Director of the Department of Consumer and Business Services may, by rule
or order, impose on a registration such conditions, limitations and
restrictions as the director deems appropriate to make the issue fair, just and
equitable, including the following:
(1)
That a prospectus containing any designated part of the information submitted
in connection with registration be sent or given to each person to whom a
security is offered or sold.
(2)
That the security be sold only on a specified form of subscription or sale
contract and that a signed or conformed copy of each contract be filed with the
director or preserved for a period up to three years specified in the rule or
order.
(3)
That any of the following be deposited in escrow on terms approved by the
director:
(a)
Any security issued or to be issued for a consideration substantially different
from the public offering price or for a consideration other than cash.
(b)
The proceeds from the sale of the security until the issuer receives an amount
specified by the director. [1967 c.537 §10]
59.095 Approval of plan to issue securities
in exchange for other securities, claims or property.
(1) The proponents of a plan pursuant to which a security is to be issued in
exchange for one or more bona fide outstanding securities, claims or property
interests, or partly in such exchange and partly for cash, except a security
the issuance of which is under supervision, regulation or control by the Public
Utility Commission of this state, may request approval of such plan by the
Director of the Department of Consumer and Business Services.
(2)
The request for approval shall be made by filing a registration statement, as
provided in ORS 59.065, with a detailed statement of the plan. The director
shall set the plan down for hearing and require the proponents of the plan to
give notice of the hearing to all persons to whom securities are to be issued
in such exchange. All such persons shall have the right to appear at the
hearing.
(3)
The director shall, after the hearing, consider the fairness of the terms and
conditions of the plan, and, if the director finds that the plan is fair, just
and equitable and free from fraud, shall approve it, subject to such
conditions, limitations and restrictions as the director may impose. If the
director finds that the plan is unfair, unjust or inequitable or not free from
fraud, the director shall deny the request, and give notice of the denial, at
the expense of the proponents, to all persons who were entitled to receive or
received notice of the hearing. [1967 c.537 §11]
59.105 Denial, suspension or revocation of
registration. (1) Except as provided in subsection
(2) of this section, the Director of the Department of Consumer and Business
Services may by order deny, suspend or revoke any registration, if the director
finds that:
(a)
The proposed plan of business of the issuer, the characteristics and terms of
sale of the securities to be sold, or the proposed methods of sale and
distribution are unfair, unjust or inequitable;
(b)
The issuer is insolvent or in unsound financial condition;
(c)
The applicant, registrant or issuer has violated any of the provisions of the
Oregon Securities Law, or any rule or order of the director of which the
applicant, registrant or issuer had notice;
(d)
The applicant, registrant or issuer has been or is engaged or is about to engage
in dishonest or fraudulent conduct with regard to securities;
(e)
The applicant, registrant, or issuer has been convicted of a misdemeanor, an
essential element of which is fraud, or of a felony;
(f)
The applicant, registrant or issuer has knowingly made or caused to be made to
the director any false representation of a material fact, or has suppressed or
withheld from the director any material information;
(g)
The applicant, registrant or issuer has refused to permit an examination to be
made by the director, or has failed to file any report, including any certified
financial report, or furnish any information required by the director in
connection with the Oregon Securities Law; or
(h)
Unreasonable amounts or kinds of commissions or other remunerations, promoter’s
profits or participation or unreasonable options have been or are to be given
or allowed directly or indirectly in connection with the sale or distribution
of the securities.
(2)
The director may enter an order against the applicant, registrant or issuer
under subsection (1) of this section if any partner, officer or director of an
applicant, registrant or issuer, any person occupying a similar status or
performing similar functions, or any person directly or indirectly controlling
the applicant, registrant or issuer has been guilty of any act or omission
which would be cause for denying, suspending or revoking the registration of an
individual applicant, registrant or issuer, except:
(a)
This subsection shall not apply to subsection (1)(a) and (b) of this section.
(b)
The director may not enter an order suspending or revoking a registration under
this subsection, pursuant to subsection (1)(e) of this section, without 10 days’
prior written notice to the registrant. [1967 c.537 §12; 1989 c.197 §4]
59.110
[Amended by 1953 c.690 §3; 1955 c.201 §1; 1957 c.47 §1; 1963 c.244 §1; 1965
c.241 §2; repealed by 1967 c.537 §36]
59.115 Liability in connection with sale
or successful solicitation of sale of securities; recovery by purchaser; limitations
on proceeding; attorney fees. (1) A person
is liable as provided in subsection (2) of this section to a purchaser of a
security if the person:
(a)
Sells or successfully solicits the sale of a security, other than a federal
covered security, in violation of the Oregon Securities Law or of any
condition, limitation or restriction imposed upon a registration or license
under the Oregon Securities Law; or
(b)
Sells or successfully solicits the sale of a security in violation of ORS
59.135 (1) or (3) 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 statements
made, in light of the circumstances under which they are made, not misleading
(the buyer not knowing of the untruth or omission), and who does not sustain
the burden of proof that the person did not know, and in the exercise of
reasonable care could not have known, of the untruth or omission.
(2)
The purchaser may recover:
(a)
Upon tender of the security, the consideration paid for the security, and
interest from the date of payment equal to the greater of the rate of interest
specified in ORS 82.010 for judgments for the payment of money or the rate
provided in the security if the security is an interest-bearing obligation, less
any amount received on the security; or
(b)
If the purchaser no longer owns the security, damages in the amount that would
be recoverable upon a tender, less the value of the security when the purchaser
disposed of it and less interest on such value at the rate of interest
specified in ORS 82.010 for judgments for the payment of money from the date of
disposition.
(3)
Every person who directly or indirectly controls a seller liable under
subsection (1) of this section, every partner, limited liability company
manager, including a member who is a manager, officer or director of such
seller, every person occupying a similar status or performing similar
functions, and every person who participates or materially aids in the sale is
also liable jointly and severally with and to the same extent as the seller,
unless the nonseller sustains the burden of proof
that the nonseller did not know, and, in the exercise
of reasonable care, could not have known, of the existence of facts on which
the liability is based. Any person held liable under this section shall be
entitled to contribution from those jointly and severally liable with that
person.
(4)
Notwithstanding the provisions of subsection (3) of this section, a person
whose sole function in connection with the sale of a security is to provide
ministerial functions of escrow, custody or deposit services in accordance with
applicable law is liable only if the person participates or materially aids in
the sale and the purchaser sustains the burden of proof that the person knew of
the existence of facts on which liability is based or that the person’s failure
to know of the existence of such facts was the result of the person’s
recklessness or gross negligence.
(5)
Any tender specified in this section may be made at any time before entry of
judgment.
(6)
Except as otherwise provided in this subsection, no action or suit may be
commenced under this section more than three years after the sale. An action
under this section for a violation of subsection (1)(b) of this section or ORS
59.135 may be commenced within three years after the sale or two years after
the person bringing the action discovered or should have discovered the facts
on which the action is based, whichever is later. Failure to commence an action
on a timely basis is an affirmative defense.
(7)
An action may not be commenced under this section solely because an offer was
made prior to registration of the securities.
(8)
Any person having a right of action against a broker-dealer, state investment adviser
or against a salesperson or investment adviser representative acting within the
course and scope or apparent course and scope of authority of the salesperson
or investment adviser representative, under this section shall have a right of
action under the bond or irrevocable letter of credit provided in ORS 59.175.
(9)
Subsection (4) of this section shall not limit the liability of any person:
(a)
For conduct other than in the circumstances described in subsection (4) of this
section; or
(b)
Under any other law, including any other provisions of the Oregon Securities
Law.
(10)
Except as provided in subsection (11) of this section, the court may award
reasonable attorney fees to the prevailing party in an action under this
section.
(11)
The court may not award attorney fees to a prevailing defendant under the
provisions of subsection (10) of this section if the action under this section
is maintained as a class action pursuant to ORCP 32. [1967 c.537 §13(1), (2),
(3), (4), (5), (7); 1985 c.349 §13; 1987 c.158 §10; 1987 c.603 §6; 1989 c.197 §5;
1991 c.331 §15; 1991 c.762 §1; 1993 c.508 §28; 1995 c.93 §27; 1995 c.696 §9;
1997 c.772 §9; 2003 c.576 §318; 2003 c.631 §1; 2003 c.786 §1]
59.120
[Amended by 1955 c.196 §1; 1957 c.116 §1; 1963 c.244 §2; repealed by 1967 c.537
§36]
59.125 Effect of notice of offer to repay
purchaser; exceptions; registration of transaction.
(1) Except as provided in subsection (3) of this section, no action or suit may
be commenced under ORS 59.115 if the purchaser has received before suit a
written notice as outlined in subsection (2) of this section.
(2)
The notice shall contain:
(a)
An offer to pay the amount specified in ORS 59.115 (2)(a) upon tender of the
security; and
(b)
A statement of the effect on the purchaser’s rights of failure to respond as
required in subsection (3) of this section.
(3)
An action or suit under this section may be commenced after receipt of a notice
as outlined in subsection (2) of this section:
(a)
If the purchaser owned the security when the notice was received, accepted the
payment offer within 30 days after its receipt, and has not been paid the full
amount offered; or
(b)
If the purchaser did not own the security when the notice was received and,
within 30 days after receipt, gave written notice of inability to tender back
the security.
(4)
An offer to repay the purchaser pursuant to this section involves the offer or
sale of a security. The transaction must be registered under ORS 59.055 unless
there is an exemption from the registration requirement or a notice is filed
under ORS 59.049. [1967 c.537 §13(6); 1985 c.349 §14; 1997 c.772 §10]
59.127 Liability in connection with
purchase or successful solicitation of purchase of securities; recovery by
seller; limitations on proceeding; attorney fees.
(1) A person is liable as provided in subsection (2) of this section to the
person selling the security, if the person:
(a)
Purchases or successfully solicits the purchase of a security, other than a
federal covered security, in violation of any condition, limitation or
restriction imposed upon a registration under the Oregon Securities Law; or
(b)
Purchases or successfully solicits the purchase of a security in violation of
ORS 59.135 (1) or (3) 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 statements
made, in light of the circumstances under which they were made, not misleading
(the seller not knowing of the untruth or omission), and if the person does not
sustain the burden of proof that the person did not know, and in the exercise
of reasonable care could not have known, of the untruth or omission.
(2)
The seller may recover:
(a)
Upon a tender of the consideration paid for the security, the security plus
interest from the date of purchase equal to the greater of the rate of interest
specified in ORS 82.010 for judgments for the payment of money, or the rate
provided in the security if the security is an interest-bearing obligation;
(b)
Damages in the amount that would be recoverable upon a tender, plus any amount
received on the security, less the consideration paid for the security; or
(c)
If the purchaser no longer owns the security, damages equal to the value of the
security when the purchaser disposed of it plus interest on such value at the
rate of interest specified in ORS 82.010 for judgments for the payment of money
from the date of disposition, less the consideration paid for the security.
(3)
Every person who directly or indirectly controls a purchaser liable under
subsection (1) of this section, every partner, limited liability company
manager, including a member who is a manager, officer or director of such
purchaser, every person occupying a similar status or performing similar
functions, and every person who participates or materially aids in the purchase
is also liable jointly and severally with and to the same extent as the
purchaser, unless the nonpurchaser sustains the
burden of proof that the nonpurchaser did not know,
and, in the exercise of reasonable care, could not have known, of the existence
of facts on which the liability is based. Any person held liable under this
section shall be entitled to contribution from those jointly and severally
liable with the person.
(4)
Notwithstanding the provisions of subsection (3) of this section, a person
whose sole function in connection with the purchase of a security is to provide
ministerial functions of escrow, custody or deposit services in accordance with
applicable law is liable only if the person participates or materially aids in
the purchase and the seller sustains the burden of proof that the person knew
of the existence of facts on which liability is based or that the person’s
failure to know of the existence of such facts was the result of the person’s
recklessness or gross negligence.
(5)
Any tender specified in this section may be made at any time before entry of
judgment.
(6)
Except as otherwise provided in this subsection, no action or suit may be
commenced under this section more than three years after the purchase. An
action under this section for a violation of subsection (1)(b) of this section
or ORS 59.135 may be commenced within three years after the purchase or two
years after the person bringing the action discovered or should have discovered
the facts on which the action is based, whichever is later. Failure to commence
an action on a timely basis is an affirmative defense.
(7)
Any person having a right of action against a broker-dealer, state investment
adviser or against a salesperson or investment adviser representative acting
within the course and scope or apparent course and scope of the authority of
the salesperson or investment adviser representative, under this section shall
have a right of action under the bond or irrevocable letter of credit provided
in ORS 59.175.
(8)
Subsection (4) of this section shall not limit the liability of any persons:
(a)
For conduct other than in the circumstances described in subsection (4) of this
section; or
(b)
Under any other law, including any other provisions of the Oregon Securities
Law.
(9)
Except as provided in subsection (10) of this section, the court may award
reasonable attorney fees to the prevailing party in an action under this
section.
(10)
The court may not award attorney fees to a prevailing defendant under the
provisions of subsection (9) of this section if the action under this section
is maintained as a class action pursuant to ORCP 32. [1975 c.300 §2; 1985 c.349
§14a; 1987 c.158 §11; 1987 c.603 §7; 1991 c.762 §2; 1993 c.508 §29; 1995 c.93 §28;
1995 c.696 §10; 1997 c.772 §11; 2003 c.576 §319; 2003 c.631 §2; 2003 c.786 §2]
59.130
[Amended by 1953 c.549 §138; repealed by 1967 c.537 §36]
59.131 Effect of notice of intent to
return unlawfully purchased security; contents of notice; registration of
transaction. (1) Except as provided in subsection
(3) of this section, no action or suit may be commenced under ORS 59.127 if the
seller has received before suit a written notice of intent to return the
security as outlined in subsection (2) of this section.
(2)
The notice shall contain:
(a)
An offer to tender the security and interest from the date of purchase, at a
rate equal to the greater of the rate of interest specified in ORS 82.010 for
judgments for the payment of money or the rate provided in the security if the
security is an interest-bearing obligation, less the consideration paid for the
security; and
(b)
A statement of the effect on the seller’s rights of failure to respond as
required in subsection (3) of this section.
(3)
An action or suit under this section may be commenced after receipt of a notice
as outlined in subsection (2) of this section:
(a)
If the seller accepts the offer and gives notice of acceptance within three
days after receipt of the offer and fails to receive the contents of such offer
as specified in subsection (2)(a) of this section within one day from the date
the notice of acceptance was sent; or
(b)
If the seller elects to recover damages as specified in subsection (2)(b) of
this section and gives notice of the election within 30 days after receipt of
the offer.
(4)
An offer to tender the security pursuant to this section involves the offer for
sale of a security. The transaction must be registered under ORS 59.055 unless
there is an exemption from the registration requirement or a notice is filed
under ORS 59.049. [1975 c.300 §3; 1985 c.349 §15; 1987 c.603 §8; 1997 c.772 §12;
2003 c.576 §320]
59.135 Fraud and deceit with respect to
securities or securities business. It is
unlawful for any person, directly or indirectly, in connection with the
purchase or sale of any security or the conduct of a securities business or for
any person who receives any consideration from another person primarily for
advising the other person as to the value of securities or their purchase or
sale, whether through the issuance of analyses or reports or otherwise:
(1)
To employ any device, scheme or artifice to defraud;
(2)
To make any untrue statement of a material fact or to omit to state a material
fact necessary in order to make the statements made, in the light of the
circumstances under which they are made, not misleading;
(3)
To engage in any act, practice or course of business which operates or would
operate as a fraud or deceit upon any person; or
(4)
To make or file, or cause to be made or filed, to or with the Director of the
Department of Consumer and Business Services any statement, report or document
which is known to be false in any material respect or matter. [1967 c.537 §14]
59.137 Liability in connection with
violation of ORS 59.135; damages; defense; attorney fees; limitations on
proceeding. (1) Any person who violates or
materially aids in a violation of ORS 59.135 (1), (2) or (3) is liable to any
purchaser or seller of the security for the actual damages caused by the
violation, including the amount of any commission, fee or other remuneration
paid, together with interest at the rate specified in ORS 82.010 for judgments
for the payment of money, unless the person who materially aids in the
violation 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 the facts
on which the liability is based.
(2)
Any person who directly or indirectly controls a person liable under subsection
(1) of this section and every partner, limited liability company manager,
including a member who is a manager, officer or director or a person occupying
a status or performing functions of a person liable under subsection (1) of this
section, is jointly and severally liable to the same extent as a person liable
under subsection (1) of this section, unless the person who may be liable under
this subsection 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
the facts on which the liability is based.
(3)
Any person held liable under this section is entitled to contribution from
those persons jointly and severally liable with that person.
(4)
Except as provided in subsection (5) of this section, the court may award
reasonable attorney fees to the prevailing party in an action under this
section.
(5)
The court may not award attorney fees to a prevailing defendant under the
provisions of subsection (4) of this section if the action under this section
is maintained as a class action pursuant to ORCP 32.
(6)
An action or suit may be commenced under this section within the later of:
(a)
Three years after the date of the purchase or sale of a security to which the
action or suit relates; or
(b)
Two years after the person bringing the action or suit discovered or should
have discovered the facts on which the action or suit is based.
(7)
Failure to commence an action or suit under this section on a timely basis is
an affirmative defense. [2003 c.631 §4; 2003 c.786 §3]
59.140
[Repealed by 1967 c.537 §36]
59.145 Effect of notice filing,
registration or license. (1) Neither the fact that a
notice filing or an application for registration or a license under the Oregon
Securities Law has been filed nor the fact that a person is effectively
licensed or a security is effectively registered constitutes a finding by the
Director of the Department of Consumer and Business Services that any document
filed under the Oregon Securities Law is true, complete and not misleading.
Neither such fact nor the fact that an exemption or exception is available for
a security or a transaction means that the director has passed in any way upon
the merits or qualifications of, or recommended or given approval to, any
person, security or transaction.
(2)
It is unlawful to make, or cause to be made, to a prospective purchaser,
customer or client a representation inconsistent with subsection (1) of this
section. [1967 c.537 §15; 1989 c.197 §6; 1997 c.772 §13]
59.150
[Amended by 1957 c.45 §1; repealed by 1967 c.537 §36]
59.155 Director is agent for service of
process; manner of service; exceptions. (1) The
Director of the Department of Consumer and Business Services shall be an agent
for the following persons upon whom may be served at any time any process,
notice or demand in a civil proceeding under the Oregon Securities Law,
including a proceeding brought by the director:
(a)
Every licensee or registrant or applicant for a license or registration of a
security, every person who files a notice under ORS 59.049 or 59.175, and every
person who offers or sells a security in this state, directly or indirectly,
unless the security or the sale is exempt from ORS 59.055; and
(b)
Every person, a resident or nonresident of this state, who has engaged in
conduct prohibited or made actionable under the Oregon Securities Law.
(2)
Service shall be made by:
(a)
Serving the director or a clerk on duty at the Department of Consumer and
Business Services a copy of the process, notice or demand, with any papers
required by law to be delivered in connection with the service, or by mailing
to the department a copy of the process, notice or demand by certified or
registered mail, and a $2 fee for each party being served;
(b)
Transmittal by the person instituting the proceeding of notice of the service
on the director and one copy of the process, notice or demand and accompanying
papers to the person being served by certified mail:
(A)
At such person’s address, if any, as shown by the records of the director; and
(B)
At such address the use of which the person initiating the proceedings knows or
on the basis of reasonable inquiry has reason to believe is most likely to
result in actual notice; and
(c)
Filing with the appropriate court or other body, as part of the return of
service, of the return receipt of mailing and an affidavit of the person
initiating the proceedings that this section has been complied with.
(3)
The procedure permitted by this section shall not be available when personal
jurisdiction can otherwise be obtained in this state.
(4)
After completion of initial service upon the director, no additional documents
need be served upon the director to maintain jurisdiction in the same proceeding
or to give notice of any motion or provisional process. [1967 c.537 §16; 1987
c.603 §9; 1989 c.197 §7; 1997 c.772 §14]
59.160
[Repealed by 1967 c.537 §36]
(Licensing of Broker-Dealers, Investment
Advisers and Salespersons)
59.165 Licensing of broker-dealers,
investment advisers and salespersons required; rules.
(1) It is unlawful for any person to transact business in this state as a
broker-dealer or salesperson unless the person is licensed under the Oregon
Securities Law.
(2)
A broker-dealer or state investment adviser may not be licensed in this state
unless the broker-dealer or state investment adviser has at least one
salesperson licensed in this state.
(3)
It is unlawful for a broker-dealer or issuer or owner of securities to employ a
salesperson to act in this state unless the salesperson is licensed under the
Oregon Securities Law to the broker-dealer or issuer or owner of securities.
Only a natural person may be licensed as a salesperson.
(4)
It is unlawful for:
(a)
A state investment adviser to employ an investment adviser representative in
this state unless the investment adviser representative is licensed under the
Oregon Securities Law to the state investment adviser;
(b)
A federal covered investment adviser to employ an investment adviser
representative who has a place of business in this state to act in this state
unless the investment adviser representative is licensed under the Oregon
Securities Law to the federal covered investment adviser; or
(c)
An individual, except as otherwise provided in subsection (8) of this section,
to transact business in this state as an investment adviser representative
unless the individual is licensed as an investment adviser representative. Only
a natural person may be licensed as an investment adviser representative.
(5)
A person may not be licensed as:
(a)
A salesperson or investment adviser representative for more than one
broker-dealer, federal covered investment adviser, state investment adviser or
issuer or owner of securities at the same time, except as may be allowed by
rule or order of the Director of the Department of Consumer and Business
Services.
(b)
A salesperson or investment adviser representative unless the person is
employed by a broker-dealer, federal covered investment adviser, state
investment adviser or issuer or owner of securities.
(6)
It is unlawful for any person to transact business in this state as a state
investment adviser unless the person:
(a)
Is licensed as such under the Oregon Securities Law; or
(b)
Is licensed as a broker-dealer without the imposition of a condition under ORS
59.215 (4).
(7)
Except for federal covered investment advisers whose activities are described
by ORS 59.015 (20)(b) and licensed broker-dealers transacting business as
federal covered investment advisers in this state, it is unlawful for any
federal covered investment adviser to conduct an advisory business in this
state unless such person makes notice filings with the director of such
documents filed with the Securities and Exchange Commission as the director may
by rule or otherwise require and pays the fee, including the notice filing fee,
described in ORS 59.175. The director may issue an order suspending the conduct
of an investment advisory business in this state if the director finds that
there is a failure to comply with any requirement under this section.
(8)
Notwithstanding any other provision of this section, an individual performing
the activities of an investment adviser representative and who would otherwise
be required to be licensed as an investment adviser representative is not
required to be separately licensed as an investment adviser representative if:
(a)
The individual is licensed to a licensed broker-dealer, the broker-dealer is
transacting business as a federal covered investment adviser or a state
investment adviser under the provisions of subsection (6)(b) of this section
and the person is performing investment adviser activities on behalf of the
broker-dealer; or
(b)
The individual is licensed to a licensed broker-dealer and the broker-dealer
directly receives all compensation otherwise earned by the person in connection
with the investment advisory activities being transacted in this state. The
broker-dealer may or may not further distribute any or all compensation
received to the licensed salesperson. [1967 c.537 §17; 1973 c.366 §5; 1985
c.349 §16; 1987 c.603 §10; 1989 c.197 §8; 1993 c.508 §30; 1995 c.622 §12; 1997
c.772 §15; 1999 c.53 §2; 2003 c.270 §4; 2003 c.785 §5]
59.170
[Amended by 1961 c.352 §1; repealed by 1967 c.537 §36]
59.175 Procedures for notice filing and
licensing; rules; examination; bond, letter of credit or other security; filing
trade name or assumed business name; fees. (1)
The Director of the Department of Consumer and Business Services by rule shall
establish procedures for notice filings required of federal covered investment
advisers as well as procedures for licensing broker-dealers, state investment
advisers, investment adviser representatives and salespersons. The director may
coordinate notice filings or licensing with any national registration,
licensing or notice filing system.
(2)
The director may require an applicant for a license as a broker-dealer or state
investment adviser, including the applicant’s partners, directors, officers or
any person occupying a similar status or performing similar functions, and any
person directly or indirectly controlling such applicant and a person for whom
application for a license as a salesperson or investment adviser representative
is made, to pass an examination on such person’s knowledge and understanding of
the Oregon Securities Law and the securities business. The director may
establish by rule a fee for the examination.
(3)
The director may make such further examination of the applicant and the
applicant’s affairs as the director deems advisable and may require by rule or
order that the applicant publish an announcement of the application in such
manner as the director may specify.
(4)(a)
Except as otherwise provided in paragraph (b) or (c) of this subsection, every
applicant for a license as a broker-dealer or state investment adviser shall
file with the director a corporate surety bond or irrevocable letter of credit
issued by an insured institution as defined in ORS 706.008 or such other
security as the director may approve by rule running to the State of Oregon in
a sum to be established by rule of the director, but in no event more than
$100,000.
(b)
Licensed broker-dealers subject to section 15 of the Securities Exchange Act of
1934, as amended, are not required to comply with paragraph (a) of this
subsection, nor are such licensed broker-dealers required to comply with any
net capital requirements imposed by the director by rule or otherwise.
(c)
A licensed state investment adviser who has its principal place of business in
a state other than this state shall be exempt from the requirements of
paragraph (a) of this subsection and shall be further exempt from any net
capital requirements imposed by the director by rule or otherwise, provided
that any such licensed state investment adviser is registered or licensed as a
state investment adviser in the state where it maintains its principal place of
business and is in compliance with such state’s bonding or net capital
requirements.
(5)(a)
Subject to paragraph (b) of this subsection, if the application, surety bond,
irrevocable letter of credit or other security and fees are in order and the
director is satisfied that the application should not be denied upon one or
more of the grounds specified in ORS 59.205 to 59.225, the director shall
license the broker-dealer, state investment adviser, salesperson or investment
adviser representative.
(b)
If the director determines under ORS 59.205 or 59.215 that a condition or
restriction should apply to the license, the director, at the time the license
is issued, shall specify in writing to the licensee the condition or
restriction applicable to the license.
(6)
A licensee under ORS 59.165 shall amend the license application when there are
material changes in the information contained in the original application.
(7)
An applicant for or a person holding a license issued under ORS 59.005 to
59.451 may file with the director a trade name, as defined in ORS 647.005, or
an assumed business name, as defined in ORS 648.005. The trade name or assumed
business name shall be filed in a form and manner established by rule by the
director. If the application is complete and the fee described in subsection
(8) of this section is paid, the director shall issue an order authorizing the
licensee to operate under the trade name or assumed business name. The order
shall remain in effect until canceled, suspended or revoked.
(8)
The director shall charge and collect fees for:
(a)
An application for a license as a broker-dealer or state investment adviser;
(b)
An application to renew a license as a broker-dealer or state investment
adviser;
(c)
An application for a license as a salesperson;
(d)
An application to renew a license as a salesperson;
(e)
An application for a license as an investment adviser representative;
(f)
An application to renew a license as an investment adviser representative;
(g)
A notice filing for a federal covered investment adviser;
(h)
A notice filing renewal for a federal covered investment adviser; and
(i) A filing for use of a trade name or an assumed business
name.
(9)(a)
The director shall set the fees described in subsection (8) of this section in
an amount that the director determines is equal as nearly as possible to the national
midpoint for similar fees charged by all other state regulatory agencies within
the United States responsible for regulating securities.
(b)
The director may adjust the amount of a fee described in subsection (8) of this
section every two years to reflect changes in the national midpoint for a
similar fee.
(c)
In determining the national midpoint for similar fees under this section, the
director may consider national midpoints determined by the North American
Securities Administrators Association, the National Association of Securities
Dealers or the United States Securities and Exchange Commission.
(10)
Except as provided in this subsection, the fees under this section are not
refundable. The director may provide for a method of equitably adjusting the
payment of fees for broker-dealers, federal covered investment advisers, state
investment advisers, salespersons and investment adviser representatives when
the director determines that the changes in filing periods and expiration dates
under ORS 59.185 are not equitable for the person making the payment. [1967
c.537 §18; 1969 c.137 §4; 1971 c.624 §3; 1985 c.349 §17; 1987 c.603 §11; 1989
c.197 §9; 1991 c.331 §16; 1993 c.508 §31; 1997 c.631 §376; 1997 c.772 §16; 1999
c.53 §3; 2001 c.32 §2; 2003 c.270 §5; 2003 c.785 §4]
59.180
[Amended by 1957 c.48 §1; repealed by 1967 c.537 §36]
59.185 Expiration of license; rules for
renewal; change in personnel. (1) Every
license of a broker-dealer or state investment adviser expires one year after
the date of issuance unless the Director of the Department of Consumer and
Business Services establishes a different expiration date for purposes of
coordination with any national registration or licensing system.
(2)(a)
Every license of an issuer’s or owner’s salesperson expires when the securities
are no longer authorized for sale or one year after the date of issuance,
whichever is sooner.
(b)
Unless the director establishes a different expiration date for the purposes of
coordination with any national registration or licensing system, every license
of a salesperson licensed to a broker-dealer and every license of an investment
adviser representative licensed to a state investment adviser expires on the
same date that the license of the broker-dealer or state investment adviser
expires.
(c)
Unless the director establishes a different expiration date for the purposes of
coordination with any national registration or licensing system, every license
of an investment adviser representative licensed on behalf of a federal covered
investment adviser expires the earlier of one year after the date of issuance
or the date the notice of the federal covered investment adviser expires.
(3)
The director by rule shall establish procedures for renewing licenses of
broker-dealers, state investment advisers, investment adviser representatives
and salespersons, and for the annual renewal of notice filings made on behalf
of federal covered investment advisers.
(4)
If there is a change in the partners, directors, officers, persons occupying
similar positions or performing similar functions, or persons directly or
indirectly controlling a broker-dealer or state investment adviser, written
notification of such change shall promptly be filed with the director. No fee
shall be required for such notification. An examination may be required of any
such individual who is newly connected with or interested in the licensee. [1967
c.537 §19 (1), (2), (3); 1969 c.137 §5; 1985 c.349 §18; 1987 c.603 §12; 1989
c.197 §10; 1993 c.508 §32; 1997 c.772 §17; 1999 c.59 §14; 2003 c.270 §6]
59.190
[Repealed by 1967 c.537 §36]
59.193 [1973
c.366 §9; 1975 c.491 §3; 1985 c.349 §19; repealed by 1987 c.603 §30]
59.195 Licensees to keep records;
inspection; filing of financial reports. (1) Subject
to the provisions of section 15 of the Securities Exchange Act of 1934, as
amended, and section 222 of the Investment Advisers Act of 1940, as amended,
every broker-dealer, state investment adviser, investment adviser
representative and salesperson shall make and keep such accounts,
correspondence, memoranda, papers, books and other records as the Director of
the Department of Consumer and Business Services by rule or order prescribes.
All such records of state investment advisers or investment adviser
representatives maintained in this state shall be preserved for three years
unless the director by rule prescribes otherwise. The director may examine all
such records within or without this state at any reasonable time or times and
may, without subpoena require the production of such records at the office of
the director as often as is reasonably necessary and, in any event, during
consideration of any application for licensing or during any proceeding under
ORS 59.205 to 59.225.
(2)
Subject to the provisions of section 15 of the Securities Exchange Act of 1934,
as amended, and section 222 of the Investment Advisers Act of 1940, as amended,
every broker-dealer, state investment adviser, investment adviser
representative and salesperson shall file with the director such financial
reports or other information as the director by rule or order may require.
Licensed broker-dealers, state investment advisers, investment adviser
representatives and salespersons shall promptly amend any document filed with
the director which is or becomes incomplete or inaccurate in any material
respect. Federal covered investment advisers shall promptly amend any document
otherwise required to be filed with the director when the federal covered
investment adviser is required to file an amendment with the United States
Securities and Exchange Commission.
(3)
A state investment adviser that has its principal place of business in a state
other than this state, and the investment adviser representatives of such a
state investment adviser, shall be exempt from the requirements of subsection
(1) of this section provided that the state investment adviser is registered as
a state investment adviser in the state where it has its principal place of
business and is in compliance with all such state’s requirements relating to
accounts and records.
(4)(a)
Every broker-dealer and salesperson of such broker-dealer shall file with the
director only such financial reports or other information as is otherwise
required to be filed with the United States Securities and Exchange Commission
pursuant to the Securities Exchange Act of 1934, as amended.
(b)
Every state investment adviser that has its principal place of business in a
state other than this state, and the investment adviser representatives of the
state investment adviser, shall file with the director only the financial
reports or other information that is required by the state in which the state
investment adviser maintains its principal place of business, provided the
state investment adviser is licensed in such state and is in compliance with
all of such state’s reporting requirements. [1967 c.537 §19(4), (5); 1985 c.349
§20; 1987 c.603 §13; 1989 c.197 §11; 1993 c.508 §33; 1997 c.772 §18]
59.200
[Amended by 1955 c.198 §1; 1957 c.58 §1; 1959 c.280 §1; repealed by 1967 c.537 §36]
59.205 Grounds for denying, suspending,
revoking or imposing condition or restriction on license.
Except as provided in ORS 59.215, the Director of the Department of Consumer
and Business Services may by order deny, suspend or revoke, or impose
conditions or restrictions on, a license of a person as a broker-dealer, state
investment adviser, investment adviser representative or salesperson if the
director finds that the applicant or licensee:
(1)
Is insolvent, either in the sense that the liabilities of the applicant or
licensee exceed the assets of the applicant or licensee or that the applicant
or licensee cannot meet the obligations of the applicant or licensee as they
mature, or is in such financial condition that the applicant or licensee cannot
continue in business with safety to the customers of the applicant or licensee.
(2)
Has engaged in dishonest, fraudulent or illegal practices or conduct in any
business or profession or unfair or unethical practices or conduct in
connection with the purchase or sale of any security.
(3)
Has willfully or repeatedly violated or failed to comply with any provision of
the Oregon Securities Law, any condition or restriction imposed on a license or
any rule or order of the director.
(4)
Has been convicted of a misdemeanor an essential element of which is fraud or
of a felony.
(5)
Is not qualified to conduct a securities business on the basis of such factors
as training, experience and knowledge of the securities business.
(6)
Has filed an application for a license which as of the date the license was
issued, or as of the date of an order conditioning, restricting, denying,
suspending or revoking a license, was incomplete in any material respect or
contained any statement which was, in light of the circumstances under which it
was made, false or misleading with respect to any material fact.
(7)
Has failed to account to persons interested for all money or property received.
(8)
Has not delivered after a reasonable time, to persons entitled thereto,
securities held or to be delivered.
(9)
Is permanently or temporarily enjoined by a court of competent jurisdiction
from engaging in or continuing any conduct or practice involving any aspect of
the securities business.
(10)
Is the subject of an order of the director conditioning, restricting, denying,
suspending or revoking a license as a broker-dealer, state investment adviser,
investment adviser representative or salesperson.
(11)
Is the subject of an order of the director under:
(a)
ORS chapter 645 involving a violation of any provision of the Oregon Commodity
Code or any rule or order of the director adopted or entered under ORS chapter
645; or
(b)
ORS 86A.095 to 86A.198 involving a violation of any provision of ORS 86A.095 to
86A.198 or any rule or order of the director adopted or entered under ORS
86A.095 to 86A.198.
(12)
Is the subject of any of the following orders that are currently effective and
were issued within the last five years:
(a)
An order by the securities agency or administrator of another state or Canadian
province or territory, or by the Securities and Exchange Commission, entered
after notice and opportunity for hearing, denying, suspending or revoking the
person’s registration or license as a broker-dealer, federal covered investment
adviser, state investment adviser, investment adviser representative or
salesperson, or the substantial equivalent of those terms as defined in the
Oregon Securities Law;
(b)
A suspension or expulsion from membership in or association with a member of a
self-regulatory organization registered under the Securities Exchange Act of
1934, as amended, the Commodity Exchange Act or the Investment Advisers Act of
1940, as amended;
(c)
A United States Postal Service fraud order;
(d)
A cease and desist order entered after notice and opportunity for hearing by
the director, the securities agency or administrator of another state or a
Canadian province or territory, the Securities and Exchange Commission or the
Commodity Futures Trading Commission; or
(e)
An order by the Commodity Futures Trading Commission denying, suspending or
revoking registration under the Commodity Exchange Act.
(13)
Has failed, reasonably to supervise the salespersons or investment adviser
representatives of the applicant or licensee.
(14)
Has failed to comply with the requirements of ORS 59.195 to make and keep
records prescribed by rule or order of the director, to produce such records
required by the director or to file any financial reports or other information
the director by rule or order may require. [1967 c.537 §20(1); 1969 c.137 §6;
1985 c.349 §21; 1987 c.603 §14; 1989 c.197 §12; 1993 c.508 §34; 1997 c.772 §19;
2001 c.32 §3; 2003 c.270 §7]
59.210
[Amended by 1955 c.179 §1; repealed by 1963 c.244 §3 (59.211 enacted in lieu of
59.210)]
59.211 [1963
c.244 §4 (enacted in lieu of 59.210); repealed by 1967 c.537 §36]
59.215 Action against applicant or
licensee for act or omission of associate; exceptions.
The Director of the Department of Consumer and Business Services may enter an
order against the applicant or licensee under ORS 59.205 if any partner,
officer or director of a broker-dealer or state investment adviser, any person
occupying a similar status or performing similar functions, or any person
directly or indirectly controlling the broker-dealer or state investment
adviser has been guilty of any act or omission which would be cause for
conditioning, restricting, denying, suspending or revoking the license of an
individual broker-dealer, state investment adviser or salesperson, except as
follows:
(1)
This section shall not apply to any issuer of a federal covered security, a
federal covered investment adviser or to ORS 59.205 (1).
(2)
The director may not enter an order against a broker-dealer or state investment
adviser on the basis of the lack of qualification under ORS 59.205 (5) of any
person other than:
(a)
The broker-dealer or state investment adviser if the broker-dealer or state
investment adviser is an individual; or
(b)
A salesperson of the broker-dealer or investment adviser representative of the
state investment adviser.
(3)
The director may not enter an order solely on the basis of lack of experience
if the applicant or licensee is qualified by training or knowledge or both.
(4)
If the director finds that an applicant for an initial license or a license
renewal as a broker-dealer is not qualified as a state investment adviser, the
director may condition the applicant’s license as a broker-dealer upon its not
transacting business in this state as a state investment adviser. [1967 c.537 §20(2);
1985 c.349 §22; 1987 c.603 §15; 1989 c.197 §13; 1993 c.508 §35; 1997 c.772 §20;
2001 c.32 §4]
59.220
[Repealed by 1967 c.537 §36]
59.225 Cancellation of license or
application; application for withdrawal; effect of suspension or revocation.
(1) If the Director of the Department of Consumer and Business Services finds
that an applicant or licensee has ceased to do business as a broker-dealer,
state investment adviser, investment adviser representative or salesperson, or
has failed to maintain a bond or other security required by ORS 59.175 (4) or
is subject to an adjudication of mental incompetence or to the control of a
committee, conservator or guardian, or cannot be located after reasonable
search, the director may cancel the license or application.
(2)(a)
A broker-dealer, state investment adviser, investment adviser representative or
salesperson may withdraw a license by filing an application to withdraw. Unless
the director determines that the license should be suspended or revoked, the
director shall allow the withdrawal subject to any conditions, limitations and
restrictions the director may impose.
(b)
A federal covered investment adviser may terminate a notice filing pursuant to
ORS 59.165 (7) by providing the director with written notice of such
termination in accordance with the procedures established by the director.
(3)
When an investment adviser representative of a federal covered investment
adviser begins or terminates an association with such federal covered
investment adviser, the federal covered investment adviser or investment
adviser representative shall promptly notify the director in writing in
accordance with the procedures established by the director.
(4)
The suspension of a license of a broker-dealer or state investment adviser
shall suspend the license of any salesperson of the broker-dealer or the
license of any investment adviser representative of the state investment
adviser. The revocation, cancellation, withdrawal or expiration of a license of
a broker-dealer or state investment adviser shall cancel the license of any
salesperson of the broker-dealer or the license of any investment adviser
representative of the state investment adviser.
(5)
The suspension of a registration of securities suspends the license of any
salesperson licensed to the issuer or owner of the securities. The revocation,
cancellation, withdrawal or expiration of the registration of securities
cancels the license of any salesperson licensed to the issuer or owner of the
securities. [1967 c.537 §20(3), (4), (5); 1985 c.349 §23; 1987 c.603 §16; 1989
c.197 §14; 1993 c.508 §36; 1997 c.772 §21]
59.230
[Repealed by 1967 c.537 §36]
(Powers of Director)
59.235 General supervision over persons
dealing in securities. Subject to section 18 of the
Securities Act of 1933, as amended, section 15 of the Securities Exchange Act
of 1934, as amended, and sections 203A and 222 of the Investment Advisers Act
of 1940, as amended, the Director of the Department of Consumer and Business
Services shall have general supervision and control over all issuers,
registrants of securities, broker-dealers, federal covered investment advisers,
state investment advisers, investment adviser representatives and salespersons
residing or doing business in this state and engaged in any activity with
respect to securities or any aspect of the securities business. All such
persons and their records and everything connected with their activities shall
be subject to examination by the director at any time. The provisions of this
section and of any section of the Oregon Securities Law relating to
examinations shall extend to any person who should have been licensed as a
broker-dealer, state investment adviser, investment adviser representative or
salesperson, any person exempted by rule from those definitions or any person
whose license has expired or has been withdrawn, canceled, suspended or
revoked. The director may collect from each such person the actual expenses
incurred in that examination. [1967 c.537 §21; 1985 c.349 §24; 1987 c.603 §17;
1989 c.197 §15; 1993 c.508 §37; 1997 c.772 §22]
59.240
[Repealed by 1955 c.198 §2]
59.245 Investigations; publicity with
respect to violations; cease and desist order.
The Director of the Department of Consumer and Business Services:
(1)
May make such public or private investigations within or outside this state as
the director deems necessary to determine whether a person has violated or is
about to violate any provision of the Oregon Securities Law or any rule or order
of the director, or to aid in the enforcement of the Oregon Securities Law or
in the formulation of rules and forms thereunder;
(2)
May require or permit a person to file a statement in writing, under oath or
otherwise as the director determines, as to all the facts and circumstances
concerning the matter to be investigated;
(3)
May publish information concerning any violation of the Oregon Securities Law
or any rule or order of the director; and
(4)
If the director has reason to believe that any person has engaged, is engaging
or is about to engage in any violation of the Oregon Securities Law, may issue
an order, subject to ORS 59.295, directed to the person to cease and desist
from the violation or threatened violation. [1967 c.537 §22; 1973 c.366 §6;
1999 c.315 §2; 2007 c.71 §14]
59.250
[Amended by 1963 c.244 §5; repealed by 1967 c.537 §36]
59.255 Enjoining violations; fine;
appointment of receiver; attorney fees; damages to private parties.
(1) Whenever it appears to the Director of the Department of Consumer and
Business Services that a person has engaged, is engaging or is about to engage
in an act or practice constituting a violation of any provision of the Oregon
Securities Law or any rule or order of the director, the director may bring suit
in the name and on behalf of the State of Oregon in the circuit court of any
county of this state to enjoin the acts or practices and to enforce compliance
with the Oregon Securities Law or such rule or order. Upon a proper showing, a
permanent or temporary injunction, restraining order or writ of mandamus shall
be granted.
(2)
The court may fine the person against whom the order is entered not more than
$20,000 for each violation, which shall be entered as a judgment and paid to
the General Fund of the State Treasury. Each violation is a separate offense.
In the case of a continuing violation, each day’s continuance is a separate
violation, but the maximum penalty for any continuing violation shall not
exceed $100,000. If the court finds that the defendant has violated any
provision of the Oregon Securities Law or any such rule or order, the court may
appoint a receiver, who may be the director, for the defendant or the defendant’s
assets. The court may not require the director to post a bond.
(3)
The court may award reasonable attorney fees to the director if the director
prevails in an action under this section. The court may award reasonable
attorney fees to a defendant who prevails in an action under this section if
the court determines that the director had no objectively reasonable basis for
asserting the claim or no reasonable basis for appealing an adverse decision of
the trial court.
(4)
The director may include in any action authorized by this section:
(a)
A claim for restitution or damages under ORS 59.115,
59.127 or 59.137, on behalf of the persons injured by the act or practice
constituting the subject matter of the action. The court shall have
jurisdiction to award appropriate relief to such persons, if the court finds
that enforcement of the rights of such persons by private civil action, whether
by class action or otherwise, would be so burdensome or expensive as to be
impractical; or
(b)
A claim for disgorgement of illegal gains or profits derived. Any recovery
under this paragraph shall be turned over to the General Fund of the State
Treasury unless the court requires other disposition.
(5)
The provisions of this section do not apply to:
(a)
A failure to file a notice and pay a fee pursuant to ORS 59.049 (1), (2) or
(3);
(b)
A failure to file a notice and pay a fee pursuant to ORS 59.165 (7);
(c)
A failure to pay a fee pursuant to ORS 59.175 (8); or
(d)
A violation of any rule adopted by the director pursuant to ORS 59.049 (1), (2)
or (3), 59.165 (7) or 59.175 (8). [1967 c.537 §23; 1971 c.394 §1; 1975 c.300 §4;
1981 c.897 §10; 1985 c.349 §26; 1995 c.696 §11; 1997 c.772 §23; 1999 c.53 §4;
1999 c.315 §3; 2003 c.631 §5]
59.260
[Repealed by 1967 c.537 §36]
59.265 Procedure when assets or capital of
broker-dealer or investment adviser found impaired; involuntary liquidation.
(1) When the Director of the Department of Consumer and Business Services
ascertains that the assets or capital of any broker-dealer not otherwise
registered under section 15 of the Securities Exchange Act of 1934, as amended,
or state investment adviser that has its principal place of business in this
state are impaired, or that such person’s affairs are in an unsound condition,
the director may take possession of all the property, business and assets of
such person located in this state and retain possession of them pending the
further proceedings specified in this section. The director shall inventory the
assets and liabilities of such person. The director shall file one copy of the
inventory in the office of the director and one copy in the office of the clerk
of the circuit court of the county in which the principal place of business of
such person is located, and shall mail one copy to each shareholder or partner
of such person at the last-known address of the shareholder or partner. The
clerk of the court shall file the inventory as a pending proceeding and give it
a case number.
(2)
If any person refuses to permit the director to take such possession, the
director may apply to the circuit court of the county in which the principal
place of business of such person is located for an order appointing a receiver,
who may be the director, to take such possession.
(3)
If the deficiency in assets or capital has not been made good or the unsound
condition remedied within 60 days from the date when the director or receiver
took possession, the property, business and assets of such person located in
this state shall be liquidated. If a receiver has not been appointed, the
director shall apply for such appointment by the court in which the inventory
was filed. The liquidation shall proceed as provided by law for liquidation of
a private corporation in receivership.
(4)
The expenses of the receiver and compensation of counsel, as well as all
expenditures required in the liquidation proceedings, shall be fixed by the
director, subject to the approval of the court, and, upon certification by the
director, shall be paid out of the funds in the hands of the director as such
receiver. [1967 c.537 §24; 1987 c.603 §18; 1993 c.508 §38; 1997 c.772 §24; 2003
c.576 §186]
59.275 Burden of proof.
It is not necessary to negative any of the exemptions or classifications
provided in the Oregon Securities Law in a complaint, action, information,
indictment or other writ or proceeding laid or brought under the Oregon
Securities Law; and the burden of proof of an exemption or classification shall
be upon the party claiming the benefit of such exemption or classification. [1967
c.537 §25]
59.285 Rules; financial statements.
(1) In accordance with this section and ORS chapter 183 the Director of the
Department of Consumer and Business Services may from time to time make, amend
and rescind such rules as are necessary to carry out the provisions of the
Oregon Securities Law. The director may classify securities, persons and
matters within the jurisdiction of the director, and prescribe different
requirements for different classes.
(2)
No rule may be made, amended or rescinded unless the director finds that the
action is necessary or appropriate in the public interest or for the protection
of investors and consistent with the purposes fairly intended by the provisions
of the Oregon Securities Law.
(3)
Except as provided in subsection (4) of this section, all financial statements
required by the Oregon Securities Law shall be prepared in accordance with
generally accepted accounting principles. The director may by rule prescribe:
(a)
The form and content of financial statements required under the Oregon
Securities Law;
(b)
The circumstances under which consolidated financial statements shall be filed;
and
(c)
Whether any required financial statements shall be certified by independent or
certified public accountants.
(4)
Subsection (3) of this section does not apply to any broker-dealer that is subject
to the financial reporting requirements of the Securities Exchange Act of 1934,
as amended, to any federal covered investment adviser or to any state
investment adviser that has its principal place of business outside this state
and is registered with the state in which the state investment adviser’s
principal place of business is located. [1967 c.537 §28; 1987 c.603 §19; 1997
c.772 §25]
59.295 Notice of orders; hearings on
orders. (1) Except as provided in ORS 183.745,
upon the entry of an order under the Oregon Securities Law, the Director of the
Department of Consumer and Business Services shall promptly give appropriate
notice of the order as provided in this subsection. The notice shall state that
a hearing will be held on the order if a written demand for hearing is filed
with the director within 20 days after the date of service of the order. The
notice shall be given to:
(a)
The issuer and applicant or registrant affected thereby with respect to orders
entered pursuant to ORS 59.085 and 59.105;
(b)
The applicant or licensee and any investment adviser representative or
salesperson affected thereby with respect to orders entered pursuant to ORS
59.205; or
(c)
All interested persons with respect to orders entered pursuant to any other
provision of the Oregon Securities Law, except ORS 59.095.
(2)
If timely demand for a hearing is filed by a person entitled to notice of the
order, the director shall hold a hearing on the order as provided by ORS
chapter 183. In the absence of a timely demand for a hearing, no person shall
be entitled to judicial review of the order.
(3)
After the hearing, the director shall enter a final order vacating, modifying
or affirming the order.
(4)
The director may enter a final order revoking a license or registration
notwithstanding the fact that the license or registration has expired, if the
initial order of revocation was issued prior to expiration of the license or
registration. [1967 c.537 §26; 1985 c.349 §27; 1987 c.603 §22; 1989 c.197 §16;
1991 c.734 §2d; 1997 c.772 §26]
59.305 Judicial review of orders.
(1) A person aggrieved by an order of the Director of the Department of
Consumer and Business Services which has been the subject of a timely
application for hearing before the director shall be entitled to judicial
review of the order under ORS chapter 183.
(2)
A judgment of a reviewing court under ORS chapter 183 may not bar the director
from thereafter vacating or modifying an order involved in the proceeding for
review, or entering any new order, for a proper cause which was not decided by
the reviewing court. [1967 c.537 §27; 2003 c.576 §321]
59.310
[Amended by 1957 c.46 §1; 1961 c.352 §2; 1963 c.244 §6; repealed by 1967 c.537 §36]
59.315 Oaths and subpoenas in proceedings
before director. (1) For the purpose of an
investigation or proceeding under the Oregon Securities Law, the Director of
the Department of Consumer and Business Services may administer oaths and
affirmations, subpoena witnesses, compel their attendance, take evidence and
require the production of books, papers, correspondence, memoranda, agreements
or other documents or records which the director deems relevant or material to
the inquiry. Each witness who appears before the director under a subpoena
shall receive the fees and mileage provided for witnesses in ORS 44.415 (2).
(2)
If a person fails to comply with a subpoena so issued or a party or witness
refuses to testify on any matters, the judge of the circuit court or of any
county, on the application of the director, shall compel obedience by
proceedings for contempt as in the case of disobedience of the requirements of
a subpoena issued from such court or a refusal to testify therein. [1967 c.537 §29;
1989 c.980 §5a]
59.320
[Amended by 1961 c.352 §3; repealed by 1967 c.537 §36]
59.325 Certified copies of documents; fee;
effect of certification. (1) The Director of the
Department of Consumer and Business Services shall furnish to any person, upon
payment of a fee established by rule, copies (certified if requested) of any
document which is a matter of public record. In a proceeding or prosecution
under the Oregon Securities Law, a copy so certified shall be prima facie
evidence of the contents of the entry or document certified.
(2)
A certificate of the director as to compliance or noncompliance with licensing
or registration provisions of the Oregon Securities Law shall be taken and
received in a civil or criminal proceeding in this state as prima facie
evidence of the facts stated in the certificate. [1967 c.537 §30; 1987 c.603 §23;
1989 c.197 §17]
59.330
[Amended by 1961 c.280 §6; repealed by 1967 c.537 §36]
(Enforcement by Attorney General)
59.331 Scope of Attorney General powers;
consent of director; powers of circuit court; damages, restitution, disgorgement
and other penalties. (1) Subject to subsection (2) of
this section and after providing notice and an opportunity to participate to
the Director of the Department of Consumer and Business Services, the Attorney
General may:
(a)
Make public or private investigations within or outside this state as the
Attorney General considers necessary to:
(A)
Determine whether a person has violated or is about to violate any provision of
the Oregon Securities Law or any rule or order of the director adopted or
issued under the Oregon Securities Law; or
(B)
Aid in the enforcement of the Oregon Securities Law or any rule or order of the
director adopted or issued under the Oregon Securities Law.
(b)
Require or permit a person to file a statement in writing, under oath or
otherwise as the Attorney General determines, as to all the facts and
circumstances concerning a matter to be investigated.
(c)
Administer oaths and affirmations, subpoena witnesses, compel the attendance of
witnesses, take evidence and require the production of books, papers,
correspondence, memoranda, agreements or other documents or records that the
Attorney General considers relevant or material to an investigation.
(d)
Bring suit in the name and on behalf of the State of Oregon in the circuit
court of any county to:
(A)
Enjoin any acts or practices the Attorney General has reason to believe that a
person has engaged, is engaging or is about to engage in that constitute a
violation of any provision of the Oregon Securities Law or any rule or order of
the director adopted or issued under the Oregon Securities Law; or
(B)
Enforce compliance with the Oregon Securities Law or any rule or order of the
director adopted or issued under the Oregon Securities Law.
(2)
The Attorney General may take action under subsection (1) of this section only
in connection with any of the following alleged violations or cases:
(a)
Alleged violations involving companies whose securities are listed on the New
York Stock Exchange, the American Stock Exchange or the National Association of
Securities Dealers Automated Quotation System, Inc. National Market System;
(b)
Cases in which the Attorney General is pursuing or intends to pursue an
investigation or litigation under ORS 166.715 to 166.735;
(c)
Cases in which the Attorney General is pursuing or intends to pursue an
investigation or litigation under ORS 646.605 to 646.652; or
(d)
Cases in which the Attorney General is pursuing or intends to pursue an
investigation or litigation under ORS 646.705 to 646.805.
(3)
The Attorney General may take action under subsection (1) of this section with
respect to cases described in subsection (2)(b), (c) or (d) of this section
only after receiving the director’s consent. The director may elect to be a
named party in any action the Attorney General takes.
(4)
Each witness who appears before the Attorney General under a subpoena issued
under this section shall receive the fees and mileage provided for witnesses in
ORS 44.415 (2). If a person fails to comply with a subpoena issued under this
section or if a party or witness refuses to testify on any matters, the judge
of the circuit court of any county, on the application of the Attorney General,
shall compel obedience by proceedings for contempt as in the case of
disobedience of the requirements of a subpoena issued from the court or a
refusal to testify in the court.
(5)
In an action brought under this section, a court:
(a)
Shall grant a permanent or temporary injunction, restraining order or writ of
mandamus upon a proper showing by the Attorney General under subsection (1)(d)
of this section.
(b)
May award reasonable attorney fees to:
(A)
The Attorney General if the Attorney General prevails in an action under this
section.
(B)
A defendant if the defendant prevails in an action under this section and the
court determines that the Attorney General had no objectively reasonable basis
for asserting the claim or no reasonable basis for appealing an adverse
decision of the trial court.
(6)
The Attorney General may include any of the following in an action authorized
by this section:
(a)
A claim for restitution or damages under ORS 59.115,
59.127 or 59.137, on behalf of the persons injured by the act or practice
constituting the subject matter of the action. If the court finds that
enforcement of the rights of the injured persons by private civil action,
whether by class action or otherwise, would be so burdensome or expensive as to
be impractical, the court has jurisdiction to award appropriate relief to the
injured persons.
(b)
A claim for disgorgement of illegal gains or profits derived. The Attorney
General shall deposit any moneys recovered under this paragraph in the General
Fund of the State Treasury unless the court requires other disposition.
(c)
A claim for the appointment of a receiver of any property derived by means of
any act or practice that constitutes a violation of any provision of the Oregon
Securities Law or any rule or order of the director adopted or issued under the
Oregon Securities Law and of any books of account and papers relating to the
property. Property for which a receiver may be appointed includes other
property with which the property derived by means of a violation has been
commingled if the property cannot be identified in kind because of the
commingling. The receiver shall take possession of the property, books and
papers and shall liquidate the property for the benefit of all persons who
intervene in the action and establish an interest in the property. Subject to
the approval of the court, the expenses and attorney fees of the receiver and
any expenditures required in the liquidation proceeding shall be paid out of
the funds of the receivership. The receiver may be the Attorney General. The
court may not require the Attorney General to post a bond.
(d)
A claim for a fine of not more than $20,000 for each violation. The fine shall
be entered as a judgment and paid to the General Fund of the State Treasury.
Each violation is a separate offense. In the case of a continuing violation,
each day’s continuance is a separate violation, but the maximum penalty for any
continuing violation may not exceed $100,000.
(7)
This section does not apply to:
(a)
A failure to file a notice and pay a fee under ORS 59.049 (1), (2) or (3);
(b)
A failure to file a notice and pay a fee under ORS 59.165 (7);
(c)
A failure to pay a fee under ORS 59.175 (8);
(d)
A violation of any rule adopted by the director under ORS 59.165 (7); or
(e)
A company that the director has licensed under ORS 59.165. [2007 c.481 §2]
(Miscellaneous Provisions)
59.335 Application of certain sections.
(1) ORS 59.055, 59.115, 59.125, 59.145 and 59.165 (1) 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)
ORS 59.145 and 59.165 (1) 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)
ORS 59.135, 59.145 and 59.165, insofar as federal covered investment advisers
or state investment advisers are concerned, apply when an act instrumental in
effecting prohibited conduct is done in this state, whether or not either party
is then present in this state. [1967 c.537 §31(1), (2), (6); 1987 c.603 §29;
1997 c.772 §27; 2003 c.631 §6; 2005 c.22 §39]
59.340
[Amended by 1963 c.244 §7; repealed by 1967 c.537 §36]
59.345 When offer to sell or buy is made
in this state. (1) For the purpose of ORS 59.335, 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).
(2)(a)
For the purpose of ORS 59.335, 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.
(b)
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).
(3)
An offer to sell or to buy is not made in this state solely because:
(a)
A publisher circulates or there is circulated on behalf of the publisher in
this state any bona fide newspaper or other publication of general, regular,
and paid circulation that is not published in this state, or that 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. [1967 c.537 §31(3), (4), (5)]
59.350 Treatment of certain transactions.
For purposes of ORS 59.005 to 59.451, 59.710 to 59.830, 59.991 and 59.995:
(1)
A transaction with a husband and wife is treated as a transaction with one
person. The securities may be held jointly or individually.
(2)
A transaction with an entity is treated as a transaction with one person.
However, if an entity is formed substantially for the purpose of acquiring the
securities that are offered, each security holder shall be counted as a
separate person. [1985 c.349 §11]
59.355 Corporations subject to other laws.
Nothing in the Oregon Securities Law relieves a corporation from making reports
required by law to be made to the Director of the Department of Consumer and
Business Services or to any other state officer, or from paying the fees to be
paid by corporations. The Oregon Securities Law:
(1)
Does not repeal any law regulating the organization of corporations in this
state or the admission of any foreign corporation.
(2)
Is additional to any provisions regulating the organization of a corporation
under the laws of this state or the admission of a foreign corporation to do
business in this state. [1967 c.537 §32]
59.365 Common-law and statutory rights not
limited. Nothing in the Oregon Securities Law
limits any statutory or common-law right of a person to bring an action in any
court for an act involved in the sale of securities, or the right of the state
to punish a person for a violation of any law. [1967 c.537 §33]
59.370 Limitation on liability for good
faith act or omission; reports regarding salespersons or investment adviser
representatives; limitation on liability related to reports; rules.
(1) Provisions of the Oregon Securities Law imposing civil or criminal
liability do not apply to an act done or omitted in good faith in conformity
with a rule or order of the Director of the Department of Consumer and Business
Services, notwithstanding that the rule or order may later be amended or
rescinded or be determined by judicial or other authority to be invalid for any
reason.
(2)
A broker-dealer, federal covered investment adviser or state investment adviser
shall report information to the director regarding salespersons or investment
adviser representatives licensed to the broker-dealer, federal covered
investment adviser or state investment adviser. The director, by rule, shall
establish the reporting requirements under this subsection. In adopting rules
under this subsection, the director shall consider and to the greatest extent
practicable adopt the applicable public reporting requirements of the National
Association of Securities Dealers, Inc., and the federal Securities and
Exchange Commission.
(3)
A broker-dealer, federal covered investment adviser or state investment adviser
is not liable in any civil action by or on behalf of a salesperson or an
investment adviser representative, including counterclaims, third-party claims
or cross-claims, that is related to an alleged untrue statement made in
connection with a report made under subsection (2) of this section, unless the
salesperson or investment adviser representative shows by clear and convincing evidence
that:
(a)
The broker-dealer, federal covered investment adviser or state investment
adviser knew at the time the report was made that the report contained a
statement regarding the salesperson or investment adviser representative that
was false in any material respect; or
(b)
The broker-dealer, federal covered investment adviser or state investment
adviser acted in reckless disregard as to the statement’s truth or falsity. [1987
c.603 §21; 2001 c.434 §1]
59.375 [1967
c.537 §34; repealed by 1987 c.603 §30]
59.405 [1971
c.641 §3; 1975 c.491 §4; repealed by 1987 c.603 §30]
59.410
[Repealed by 1967 c.537 §36]
59.415 [1971
c.641 §4; 1981 c.897 §11; repealed by 1987 c.603 §30]
59.420
[Repealed by 1967 c.537 §36]
59.425 [1971
c.641 §5; repealed by 1987 c.603 §30]
59.430
[Repealed by 1967 c.537 §36]
59.435 [1971
c.641 §6; 1981 c.897 §12; repealed by 1987 c.603 §30]
59.440
[Repealed by 1967 c.537 §36]
59.445 [1971
c.641 §7; repealed by 1987 c.603 §30]
59.450
[Repealed by 1967 c.537 §36]
(Required Reports and Statements)
59.451 Prohibition against filing false
statement by person under investigation or examination.
It is unlawful for any person who is the subject of an investigation under ORS
59.245 or examination under ORS 59.235, directly or indirectly, to make or file
or cause to be made or filed with the Director of the Department of Consumer
and Business Services any statement, report or document which is false in any
material respect or manner. [1985 c.349 §25]
59.510
[Repealed by 1967 c.537 §36]
59.520
[Repealed by 1967 c.537 §36]
59.530
[Repealed by 1967 c.537 §36]
UNIFORM TOD SECURITY REGISTRATION ACT
59.535 Definitions for ORS 59.535 to
59.585. For the purposes of ORS 59.535 to
59.585, unless the context otherwise requires:
(1)
“Beneficiary form” means a registration of a security which indicates the
present owner of the security and the intention of the owner regarding the
person who will become the owner of the security upon the death of the owner.
(2)
“Devisee” means any person designated in a will to receive a disposition of
real or personal property.
(3)
“Heirs” means those persons, including the surviving spouse, who are entitled
under the statutes of intestate succession to the property of a decedent.
(4)
“Person” means an individual, a corporation, an organization or other legal
entity.
(5)
“Personal representative” includes executor, administrator, successor personal
representative, special administrator and persons who perform substantially the
same function under the law governing their status.
(6)
“Property” includes both real and personal property or any interest therein and
means anything that may be the subject of ownership.
(7)
“Register,” including its derivatives, means to issue a certificate showing the
ownership of a certificated security or, in the case of an uncertificated
security, to initiate or transfer an account showing ownership of securities.
(8)
“Registering entity” means a person who originates or transfers a security
title by registration, and includes a broker maintaining security accounts for
customers and a transfer agent or other person acting for or as an issuer of
securities.
(9)
“Security” means a share, participation or other interest in property, in a
business, or in an obligation of an enterprise or other issuer, and includes a
certificated security, an uncertificated security and
a security account.
(10)
“Security account” means:
(a)
A reinvestment account associated with a security, a securities account with a
broker, cash, cash equivalents, interest, earnings or dividends earned or
declared on a security in an account, a reinvestment account or a brokerage
account, whether or not credited to the account before the owner’s death;
(b)
A cash balance or other property held for or due to the owner of a security as
a replacement for or product of an account security, whether or not credited to
the account before the owner’s death; or
(c)
An investment management account, a safekeeping account or a custody account
with a financial institution or trust company, as those terms are defined in
ORS 706.008, including the securities in the account and cash, cash
equivalents, interest, earnings or dividends earned or declared on a security
in the account, whether or not credited to the account before the owner’s
death.
(11)
“State” includes any state of the United States, the District of Columbia, the
Commonwealth of Puerto Rico and any territory or possession subject to the
legislative authority of the United States. [1991 c.306 §1; 2007 c.514 §1]
59.540 Registration in beneficiary form;
sole or joint tenancy ownership. Only
individuals whose registration of a security shows sole ownership by one
individual or multiple ownership by two or more with right of survivorship,
rather than as tenants in common, may obtain registration in beneficiary form.
Multiple owners of a security registered in beneficiary form hold as joint
tenants with right of survivorship, as tenants by the entireties, or as owners
of community property held in survivorship form, and not as tenants in common. [1991
c.306 §2]
59.545 Registration in beneficiary form;
applicable law. A security may be registered in
beneficiary form if the form is authorized by this or a similar statute of the
state of organization of the issuer or registering entity, the location of the
registering entity’s principal office, the office of its transfer agent or its
office making the registration, or by this or a similar statute of the law of
the state listed as the owner’s address at the time of registration. A
registration governed by the law of a jurisdiction in which this or similar
legislation is not in force or was not in force when a registration in
beneficiary form was made is nevertheless presumed to be valid and authorized
as a matter of contract law. [1991 c.306 §3]
59.550 Origination of registration in
beneficiary form. A security, whether evidenced by
certificate or account, is registered in beneficiary form when the registration
includes a designation of a beneficiary to take the ownership at the death of
the owner or the deaths of all multiple owners. [1991 c.306 §4]
59.555 Form of registration in beneficiary
form. Registration in beneficiary form may be
shown by the words “transfer on death” or the abbreviation “TOD,” or by the
words “pay on death” or the abbreviation “POD,” after the name of the
registered owner and before the name of a beneficiary. [1991 c.306 §5]
59.560 Effect of registration in
beneficiary form. The designation of a TOD
beneficiary on a registration in beneficiary form has no effect on ownership
until the owner’s death. A registration of a security in beneficiary form may
be canceled or changed at any time by the sole owner or all then surviving
owners without the consent of the beneficiary. [1991 c.306 §6]
59.565 Ownership on death of owner.
On death of a sole owner or the last to die of all multiple owners, ownership
of securities registered in beneficiary form passes to the beneficiary or
beneficiaries who survive all owners. On proof of death of all owners and
compliance with any applicable requirements of the registering entity, a
security registered in beneficiary form may be reregistered in the name of the
beneficiary or beneficiaries who survived the death of all owners. Until
division of the security after the death of all owners, multiple beneficiaries
surviving the death of all owners hold their interests as tenants in common. If
no beneficiary survives the death of all owners, the security belongs to the
estate of the deceased sole owner or the estate of the last to die of all
multiple owners. [1991 c.306 §7]
59.570 Protection of registering entity.
(1) A registering entity is not required to offer or to accept a request for
security registration in beneficiary form. If a registration in beneficiary
form is offered by a registering entity, the owner requesting registration in
beneficiary form assents to the protections given to the registering entity by
ORS 59.535 to 59.585.
(2)
By accepting a request for registration of a security in beneficiary form, the
registering entity agrees that the registration will be implemented on death of
the deceased owner as provided in ORS 59.535 to 59.585.
(3)
A registering entity is discharged from all claims to a security by the estate,
creditors, heirs or devisees of a deceased owner if it registers a transfer of
the security in accordance with ORS 59.565 and does so in good faith reliance
on the registration, on ORS 59.535 to 59.585 and on information provided to it
by affidavit of the personal representative of the deceased owner, or by the
surviving beneficiary or by the surviving beneficiary’s representatives, or
other information available to the registering entity. The protections of ORS
59.535 to 59.585 do not extend to a reregistration or
payment made after a registering entity has received written notice from any
claimant to any interest in the security objecting to implementation of a
registration in beneficiary form. No other notice or other information
available to the registering entity affects its right to protection under ORS
59.535 to 59.585.
(4)
The protection provided by ORS 59.535 to 59.585 to the registering entity of a
security does not affect the rights of beneficiaries in disputes between
themselves and other claimants to ownership of the security transferred or its
value or proceeds. [1991 c.306 §8]
59.575 Nontestamentary
transfer on death. (1) A transfer on death
resulting from a registration in beneficiary form is effective by reason of the
contract regarding the registration between the owner and the registering
entity and ORS 59.535 to 59.585, and is not testamentary.
(2)
ORS 59.535 to 59.585 do not limit the rights of creditors of security owners
against beneficiaries and other transferees under other laws of this state. [1991
c.306 §9]
59.580 Terms, conditions and forms for registration.
(1) A registering entity offering to accept registrations in beneficiary form
may establish the terms and conditions under which it will receive requests for
registrations in beneficiary form and for implementation of registrations in
beneficiary form, including requests for cancellation of previously registered
TOD beneficiary designations and requests for reregistration
to effect a change of beneficiary. The terms and conditions so established may
provide for proving death, avoiding or resolving any problems concerning
fractional shares, designating primary and contingent beneficiaries and
substituting a named beneficiary’s descendants to take in the place of the
named beneficiary in the event of the beneficiary’s death. Substitution may be
indicated by appending to the name of the primary beneficiary the letters LDPS,
standing for “lineal descendants per stirpes.” This
designation substitutes a deceased beneficiary’s descendants who survive the
owner for a beneficiary who fails to so survive, the descendants to be
identified and to share in accordance with the law of the beneficiary’s
domicile at the owner’s death governing inheritance by descendants of an
intestate. Other forms of identifying beneficiaries who are to take on one or
more contingencies, and rules for providing proofs and assurances needed to
satisfy reasonable concerns by registering entities regarding conditions and
identities relevant to accurate implementation of registrations in beneficiary
form, may be contained in a registering entity’s terms and conditions.
(2)
The following are illustrations of registrations in beneficiary form which a
registering entity may authorize:
(a)
Sole owner-sole beneficiary: John S. Brown TOD (or POD) John S. Brown Jr.
(b)
Multiple owners-sole beneficiary: John S. Brown Mary B. Brown JT TEN TOD
John S. Brown Jr.
(c)
Multiple owners-primary and secondary (substituted) beneficiaries: John S.
Brown Mary B. Brown JT TEN TOD John S. Brown Jr. SUB BENE Peter Q. Brown :bu.or:su. John S. Brown Mary B. Brown JT TEN TOD John S.
Brown Jr. LDPS. [1991 c.306 §10]
59.585 Short title; rules of construction.
(1) ORS 59.535 to 59.585 shall be known as and may be cited as the Uniform TOD
Security Registration Act.
(2)
ORS 59.535 to 59.585 shall be liberally construed and applied to promote its
underlying purposes and policy and to make uniform the laws with respect to the
subject of ORS 59.535 to 59.585 among states enacting it.
(3)
Unless displaced by the particular provisions of ORS 59.535 to 59.585, the
principles of law and equity supplement its provisions. [1991 c.306 §11]
59.610
[Repealed by 1967 c.537 §36]
59.620
[Repealed by 1967 c.537 §36]
59.660
[Repealed by 2007 c.661 §28]
59.670
[Amended by 1981 c.897 §13; 1995 c.618 §35; repealed by 2007 c.661 §28]
59.680
[Amended by 1971 c.200 §5; 1973 c.794 §14; repealed by 2007 c.661 §28]
59.690
[Repealed by 2007 c.661 §28]
59.700
[Repealed by 2007 c.661 §28]
PROHIBITION OF CERTAIN SECURITY TRANSACTIONS
59.710 Definitions for ORS 59.710 to
59.830. As used in ORS 59.710 to 59.830, unless
the context indicates otherwise:
(1)
“Security,” “securities” or “securities or commodities,” mean and include all
evidences of debt or property and options for their purchase, shares in any
corporation or association, bonds, coupons, scrip, rights, choses
in action, and other evidences of debt or property, and options for their
purchase, or anything movable that is bought and sold.
(2)
“Broker” means and includes every person who in this state engages, either for
all or part of the person’s time, in the business of selling any securities or
commodities, or purchasing, or otherwise acquiring securities or commodities
from another for the purpose of reselling them or offering them for sale to the
public; or in the business of offering, buying or selling, or otherwise dealing
or trading in securities or commodities, as agent or principal, for commission
or at a profit; and every person who deals in futures or differences in market
quotations of prices or values of any securities or commodities, or accepts
margins on purchases or sales, or pretended purchases or sales of securities or
commodities.
(3)
“Bucket shop” means any building, or any room, apartment, booth, office or
store therein, or any other place where any contract prohibited by ORS 59.710
to 59.830 is made or offered to be made more than once and in the course of
continuing or repeated transactions.
(4)
“Bonds” includes the bonds or other evidences of debt of a corporation, company
or association.
59.720 Application of ORS 59.710 to 59.830
to real estate contracts and brokers. The
provisions of ORS 59.710 to 59.830 shall not apply to any contract, agreement,
sale, purchase, lease, conveyance or mortgage pertaining to real estate
situated in this state, nor to the business of real estate brokers or principal
real estate brokers, as defined in ORS 696.010, in so far as such business
pertains to real estate located in this state. [Amended by 2001 c.300 §53]
59.730 Making contract involving
securities without intending a bona fide sale or purchase.
No person, whether acting in the person’s own right, or as the officer, agent,
servant, correspondent or representative of another, shall, as broker make or offer
to make, assist in making or offering to make, perform or take part in any
contract respecting the purchase or sale, either upon credit or margin, of any
securities or commodities more than once, and in course of continuing or
repeated transactions:
(1)
Intending that the contract shall be terminated, closed or settled according
to, or upon the basis of the public market quotations of or prices made on any
board of trade or exchange or market which deals in such commodities or
securities, and without intending a bona fide purchase or sale of the same; or
(2)
Intending that the contract shall be deemed terminated, closed and settled when
the market quotations or prices mentioned in subsection (1) of this section for
the securities or commodities named in the contract reach a certain figure,
without intending a bona fide purchase or sale of the same; or
(3)
Not intending the actual bona fide receipt or delivery of such securities or
commodities, but intending a settlement of the contract based upon the difference
in the public market quotations or prices, mentioned in subsection (1) of this
section, at which the securities or commodities are, or are asserted to be,
bought or sold. The prosecution, conviction and punishment of a corporation for
violation of this section shall not be deemed to be a prosecution, conviction
or punishment of any of its officers, directors or stockholders.
59.740 Conducting bucket shop or
repeatedly making forbidden contracts. No person
shall as owner, keeper, proprietor or person in charge of, or as officer,
director, stockholder, agent, servant, correspondent or representative of any
person, keep, conduct or operate any bucket shop, or knowingly permit or induce
any person, whether acting in the person’s own right or as officer, agent,
servant, correspondent or representative of another, to make, offer to make
therein, or assist in making or in offering to make therein, any of the
contract specified in ORS 59.730, more than once and in the course of
continuing or repeated transactions.
59.750 Receipt or communication of prices
for purpose of forbidden contract. No person
shall receive, communicate, exhibit or display in any manner any statement of
quotations or prices of securities or commodities with an intent to make or offer
to make, or to assist in making, or offering to make any contract prohibited by
ORS 59.720 to 59.810.
59.760 Reporting false sale of securities
with intent to deceive. No person shall, with intent to
deceive, report or publish, or cause to be reported or published as a purchase
or sale of stocks or bonds, any transaction whereby no actual change of
ownership or interest is effected.
59.770 Manipulating market by pretended
sales. No person shall inflate, depress or
cause fluctuations in, or attempt to inflate, depress or cause fluctuations in,
or combine or conspire with any other person to inflate, depress or cause
fluctuations in, the market prices of stocks or bonds, or of an issue or any
part of an issue of such stocks or bonds, by means of pretended purchases and
sales, or by any other fictitious transactions or devices, for or on account of
any person, whereby either in whole or in part a simultaneous change of
ownership of or interest in such stocks or bonds or of such issue or part of an
issue thereof, is not effected. A pretended purchase
or sale of any stocks or bonds whereby, in whole or in part, no simultaneous
change of ownership or interest therein is effected, is prima facie evidence of
the violation of this section by the person taking part in the pretended
purchase or sale.
59.780 Broker’s trading against customer’s
order; violation of ORS 59.780 to 59.800 by member of broker’s firm.
(1) No broker, employed by a customer to buy and carry upon margin stocks or
bonds, while acting as broker for the customer in respect to such stocks or
bonds, shall sell for the broker’s own account the same kind or issue of stocks
or bonds, with intent to trade against the customer’s order.
(2)
No broker, employed by a customer to sell stocks or bonds, while acting as
broker for the customer in respect to the sale of such stocks or bonds, shall
purchase for the broker’s own account the same kind or issue of stocks or
bonds, with intent to trade against the customer’s order.
(3)
Every member of a firm of brokers who either does, or consents or assents to
the doing of, any act prohibited by this section, ORS 59.790 or 59.800 is
guilty of violating the section prohibiting the act.
59.790 Insolvent broker-dealer receiving
securities from customer. No broker-dealer engaged in the
business of purchasing and selling stocks or bonds as a broker-dealer, knowing
that the broker-dealer is insolvent, shall accept or receive from a customer
ignorant of the insolvency, money, stocks or bonds belonging to the customer,
except in liquidation or as security for an existing indebtedness, and thereby
cause the customer to lose in whole or in part such money, stocks or bonds. A
broker-dealer shall be deemed insolvent within the meaning of this section
whenever the aggregate of the property of the broker-dealer is not, at a fair
valuation, sufficient in amount to pay the debts of the broker-dealer. [Amended
by 1987 c.158 §12]
59.800 Pledge or sale by broker-dealer of
customer’s securities. No broker-dealer engaged in the
business of purchasing and selling stocks or bonds as a broker-dealer shall:
(1)
While having in the possession of the broker-dealer, for safekeeping or
otherwise, stocks or bonds belonging to a customer, without having any lien
thereon or any special property therein, pledge or dispose thereof without the
customer’s consent; or
(2)
While having in the possession of the broker-dealer stocks or bonds belonging
to a customer on which the broker-dealer has a lien for indebtedness due to the
broker-dealer by the customer, pledge the same for more than the amount due to
the broker-dealer thereon, or otherwise dispose thereof for the broker-dealer’s own benefit, with or without the customer’s
consent, and without having in possession of the broker-dealer or subject to
control of the broker-dealer, stocks or bonds of the kind and amount to which
the customer is then entitled, for delivery to the customer upon demand of the
customer therefor and tender of the amount due
thereon, and thereby cause the customer to lose, in whole or in part, such
stocks or bonds, or the value thereof; or
(3)
Fail, on demand, to deliver to any customer, stocks or bonds owned by the
customer, and in the possession of such broker-dealer, upon payment or tender
of the amount the same was pledged to secure. [Amended by 1987 c.158 §13]
59.810 Delivery to customer of true
statement of purchase or sale made by broker. No
person engaged in the business of purchasing or selling stocks or bonds as a
broker shall refuse to deliver to each customer on whose behalf a purchase or
sale of such securities is made by the person, within five days after written
demand therefor made within six months following the
purchase or sale, a statement or memorandum of the purchase or sale which is
true in all material respects and which contains a description of the
securities purchased or sold, the name of the person from whom the securities
were purchased or to whom they were sold, and the day and hours between which
the transaction took place.
59.820 Actions against corporation for
second violation. (1) If a domestic corporation is
convicted of a second offense under ORS 59.730 to 59.810, the circuit court has
jurisdiction over an action by the Attorney General, in the name of the people,
to dissolve the corporation.
(2)
If a foreign corporation is convicted of a second offense under ORS 59.730 to
59.810, the circuit court has jurisdiction in an action brought as provided in
subsection (1) of this section to restrain the corporation from doing business
in this state.
59.830 Self-incrimination by witness;
immunity from prosecution. No person shall be excused from
attending and testifying, or producing any book, paper or other document before
any court or magistrate, upon any trial, investigation or proceeding initiated
by the district attorney, grand jury or court for a violation of any of the
provisions of ORS 59.730 to 59.810, upon the ground that the testimony or
evidence, documentary or otherwise, required of the person may tend to convict
the person of a crime or subject the person to a penalty or forfeiture.
However, no person shall be prosecuted or subjected to any penalty or
forfeiture for or on account of any transaction, matter or thing concerning
which the person may so testify or produce evidence, documentary or otherwise,
and no testimony so given or produced shall be received against the person in
any criminal action, suit or proceeding, investigation, inquisition or inquiry.
59.840 [1993
c.508 §1; 1995 c.129 §1; 1995 c.622 §13; 1997 c.211 §1; 1997 c.631 §377; 1999
c.36 §1; 2001 c.377 §40; 2001 c.952 §1; 2003 c.364 §47; 2003 c.655 §48; 2009
c.863 §14; renumbered 86A.100 in 2009]
59.845 [1993
c.508 §2; 1999 c.36 §2; renumbered 86A.103 in 2009]
59.850 [1993
c.508 §3; 1995 c.129 §2; 1997 c.631 §378; 1999 c.36 §3; 2009 c.863 §15;
renumbered 86A.106 in 2009]
59.855 [1993
c.508 §4; 1995 c.129 §3; 2009 c.863 §16; renumbered 86A.109 in 2009]
59.860 [1993
c.508 §5; 2008 c.38 §1; 2009 c.863 §17; renumbered 86A.112 in 2009]
59.865 [1993
c.508 §6; 2001 c.952 §10; 2009 c.863 §18; renumbered 86A.115 in 2009]
59.870 [1993
c.508 §7; renumbered 86A.118 in 2009]
59.875 [1993
c.508 §8; 2009 c.863 §19; renumbered 86A.121 in 2009]
59.880 [1993
c.508 §9; 2001 c.952 §11; 2009 c.863 §20; renumbered 86A.124 in 2009]
59.885 [1993
c.508 §10; 2007 c.71 §15; renumbered 86A.127 in 2009]
59.890 [1993
c.508 §11; 1995 c.696 §12; renumbered 86A.130 in 2009]
59.895 [1993
c.508 §12; 2003 c.576 §187; renumbered 86A.133 in 2009]
59.900 [1993
c.508 §13; 2001 c.952 §12; 2009 c.863 §21; renumbered 86A.136 in 2009]
59.905 [1993
c.508 §14; 2001 c.952 §13; 2009 c.863 §22; renumbered 86A.139 in 2009]
59.910 [1993
c.508 §15; 2003 c.576 §322; renumbered 86A.142 in 2009]
59.915 [1993
c.508 §16; renumbered 86A.145 in 2009]
59.920 [1993
c.508 §17; renumbered 86A.148 in 2009]
59.925 [1993
c.508 §18; 1995 c.696 §13; 1999 c.1001 §1; 2005 c.97 §1; 2009 c.863 §23;
renumbered 86A.151 in 2009]
59.930 [1993
c.508 §19; renumbered 86A.154 in 2009]
59.935 [1993
c.508 §20; 1995 c.191 §1; renumbered 86A.157 in 2009]
59.940 [1993
c.508 §20a; 1995 c.191 §2; renumbered 86A.160 in 2009]
59.945 [1993
c.508 §21; renumbered 86A.163 in 2009]
59.950 [1993
c.508 §22; renumbered 86A.166 in 2009]
59.955 [1993
c.508 §23; renumbered 86A.169 in 2009]
59.960 [1993
c.508 §24; renumbered 86A.172 in 2009]
59.962 [1999
c.36 §4; 2001 c.952 §14; 2009 c.863 §24; renumbered 86A.175 in 2009]
59.965 [1995
c.129 §5; renumbered 59.980 in 2001]
59.967 [2001
c.952 §3; 2009 c.863 §25; renumbered 86A.178 in 2009]
59.969 [2001
c.952 §4; 2003 c.526 §4; 2005 c.22 §40; 2008 c.38 §2; renumbered 86A.179 in
2009]
59.970 [2003
c.526 §2; 2005 c.22 §41; renumbered 86A.180 in 2009]
59.971 [2001
c.952 §6; 2003 c.526 §6; 2008 c.38 §3; 2009 c.863 §26; renumbered 86A.183 in
2009]
59.972 [2003
c.526 §3; 2009 c.863 §27; renumbered 86A.186 in 2009]
59.973 [2001
c.952 §7; 2003 c.526 §5; 2008 c.38 §4; renumbered 86A.187 in 2009]
59.975 [2001
c.952 §8; renumbered 86A.188 in 2009]
59.977 [2001
c.952 §9; 2005 c.97 §3; renumbered 86A.189 in 2009]
59.980
[Formerly 59.965; renumbered 86A.095 in 2009]
PENALTIES
59.990
[Amended by 1955 c.180 §1; repealed by 1967 c.537 §36]
59.991 Criminal penalties for ORS 59.005
to 59.451 and 59.710 to 59.830; exceptions. (1)
Except as provided in subsection (3) of this section, violation of any
provision of ORS 59.005 to 59.451, 59.710 to 59.830, 59.991 and 59.995 or any
rule adopted by the Director of the Department of Consumer and Business
Services under ORS 59.005 to 59.451, 59.710 to 59.830, 59.991 and 59.995,
except ORS 59.315 (2) or 59.810, is a Class B felony.
(2)
Violation of ORS 59.315 (2) or 59.810 is a Class A misdemeanor.
(3)
This section does not apply to a failure to file a notice and pay a fee under
ORS 59.049 (1), (2) or (3), nor to a failure to file a notice and pay a fee
pursuant to ORS 59.165 (7), nor to a failure to pay a fee pursuant to ORS
59.175 (8), nor to a violation of any rule adopted by the director under ORS
59.049 (1), (2) or (3), 59.165 (7) or 59.175 (8). [1967 c.537 §35; 1981 c.292 §5;
1987 c.603 §24; 1997 c.772 §28; 1999 c.53 §5]
59.992 [1993
c.508 §25; 1995 c.622 §14; 2005 c.97 §2; 2009 c.863 §28; renumbered 86A.990 in
2009]
59.995 Civil penalties for ORS 59.005 to
59.451 and 59.710 to 59.830; exceptions. (1) In
addition to all other penalties and enforcement provisions provided by law, any
person who violates or who procures, aids or abets in the violation of ORS
59.005 to 59.451, 59.710 to 59.830, 59.991 and 59.995 or any rule or order of
the Director of the Department of Consumer and Business Services shall be
subject to a penalty of not more than $20,000 for every violation, which shall
be paid to the General Fund of the State Treasury.
(2)
Every violation is a separate offense and, in the case of a continuing
violation, each day’s continuance is a separate violation, but the maximum
penalty for any continuing violation shall not exceed $100,000.
(3)
Civil penalties under this section shall be imposed as provided in ORS 183.745.
(4)
This section does not apply to a failure to file a notice and pay a fee
pursuant to ORS 59.049 (1), (2) or (3), nor to a failure to file a notice and
pay a fee pursuant to ORS 59.165 (7), nor to a failure to pay a fee pursuant to
ORS 59.175 (8), nor to a violation of any rule adopted by the director under
ORS 59.049 (1), (2) or (3), 59.165 (7) or 59.175 (8). [1973 c.366 §10; 1975
c.491 §5; 1983 c.696 §7; 1985 c.349 §28; 1989 c.197 §18; 1991 c.734 §3; 1997
c.772 §29; 1999 c.53 §6; 1999 c.315 §4]
59.996 [1993
c.508 §26; 2008 c.38 §5; renumbered 86A.992 in 2009]
_______________