§ 359-G — Violations and penalties

New York § 359-G

• Jurisdiction: New York
• Law GBS: General Business
• Art. 23-A: Fraudulent Practices In Respect to Stocks, Bonds and Other Securities

Text

§ 359-g. Violations and penalties. 1. (a) Any person, partnership,\ncorporation, company, trust or association having been served with an\norder issued pursuant to the provisions of section three hundred and\nfifty-four staying or enjoining any practices or transactions, or with\nany order or with a final judgement in an action brought by the\nattorney-general, as in this article provided, staying or enjoining any\npractices or transactions, and any person, partnership, corporation,\ncompany, trust or association having knowledge of the issuance of any\nsuch order or judgment who, while such order or judgment is in effect,\nshall disobey the same, shall be deemed in contempt of court and shall\nbe guilty of a misdemeanor and in addition for every violation or\nattempted violation of such order or such judgment shall be liable to a\ncivil penalty of three thousand dollars, recoverable in an action\nbrought by and in the name of the people of the state of New York. Such\npenalty shall be cumulative and more than one penalty shall be\nrecoverable in the same action in any court of competent jurisdiction.\nAny person, partnership, corporation, company, trust or association who\nhas previously been convicted of a violation of this article, or who has\nbeen previously convicted within the five years immediately preceding,\nof any crime in this state, or any offense without the jurisdiction of\nthis state for which a sentence to a term of imprisonment in excess of\none year was authorized, and which crime or offense involved the\nissuance, distribution, exchange, sale, negotiation or purchase of\nsecurities or commodities, by fraud, deception, concealment,\nsuppression, false pretense, false promise, theft or fictitious purchase\nor sale, or who has been previously found in contempt of court hereunder\nunder this article and who subsequently violates the provisions of this\nsection or any other provision of this article shall be guilty of a\nClass E felony.\n (b) For purposes of this section the term "security" shall be as\ndefined in this article or in section two of the United States\nSecurities Exchange Act of 1934, 15 U.S.C. § 78c and the term\n"commodity" shall be as defined in this article or in section two of the\nUnited States Commodities Exchange Act, 7 U.S.C. § 2.\n (c) An appeal from an order or judgment entered under the provisions\nof this article shall not operate as a stay of proceedings to enforce\nsuch order or judgment, or suspend the injunction thereby granted unless\na justice of the supreme court, assigned to the appellate division to\nwhich such appeal is taken, shall, upon notice to the attorney-general,\nmake an order granting such stay or suspending such injunction upon such\nterms as he deems proper.\n 2. Any person, partnership, corporation, company, trust or association\nviolating any of the provisions of this article shall be guilty of a\nmisdemeanor, except where otherwise provided herein, punishable by a\nfine of not more than five hundred dollars, or imprisonment for not more\nthan one year or both.\n 3. Modification or dissolution of a permanent injunction. Any person\nagainst whom an injunction has been granted under the provisions of this\narticle may apply to the supreme court at any time after five years from\nthe date such permanent injunction became effective, upon at least sixty\ndays notice to the attorney-general, for an order dissolving such\ninjunction or modifying the same upon such terms and conditions as the\ncourt deems necessary or desirable. Such application for dissolution or\nmodification of such injunction shall contain a recitation of the facts\nand circumstances which caused the granting of the injunction; the\noccupation and employment of the person making the application and his\nfinancial remuneration therefrom since the time the injunction was\ngranted; his net worth at the time of the application and the source\nthereof, together with any other facts bearing upon the reasonableness\nof the application and the character of the applicant, as may enable the\ncourt to issue an order that will properly dispose of such application\nin the interests of justice. A copy of such application, together with\ncopies of any other papers in support thereof, shall be served upon the\nattorney-general at least sixty days prior to the return date thereof.\nIn addition thereto the applicant shall file with the court a good and\nsufficient surety bond in the sum of one thousand dollars guaranteeing\nthat he will pay all costs and expenses of an investigation by the\nattorney-general of such applicant and the statements and claims alleged\nin the application together with any further investigation which the\nattorney-general may deem necessary or desirable to determine whether he\nshould consent to the application, oppose the same, or make such other\nrecommendations to the court as in his opinion are desirable to be\nincluded in any modification of such injunction. Should it appear in the\ncourse of such investigation by the attorney-general that said sum is\nnot sufficient, the attorney-general may apply to the court by usual\nnotice of motion or order to show cause for an increase in the amount of\nsecurity or further surety bond necessary to fully pay all of the costs\nof the investigation and the court may require such further bond as the\nsituation requires to fully pay the costs and expenses of the\ninvestigation. Upon the completion of such investigation, the\nattorney-general may file an answer to such application setting forth\nsuch facts as are pertinent to the determination by the court of the\nmatter before it and whether said injunction should be dissolved,\nmodified or continued in whole or in part and what conditions, if any,\nshall be attached to any dissolution or modification of said injunction.\nAfter a hearing upon such application and after any further\ninvestigation, proof or testimony which the court may desire has been\noffered, or at any adjourned dates thereof, the court may make a final\norder dissolving the permanent injunction or modifying the same upon\nsuch terms and conditions as in its opinion are just and desirable, or\nin its discretion, may deny the application. Such order shall contain a\ndirection that the applicant pay to the attorney-general the costs and\nexpenses of the investigation in connection with the proceeding, and any\njudgment entered thereon may be enforced directly against the surety on\nthe bond. The court shall grant no temporary or other relief from the\ninjunction in force pending a final determination of such application.\nNo application under this subdivision shall be entertained: (a) where\nthe injunction was granted as an incident to a crime of which the\napplicant had been or was later convicted, nor (b) in any case where the\napplicant has been convicted of a felony or a crime that would be a\nfelony if committed in the state of New York since the issuance of the\ninjunction or (c) convicted at any time of any crime involving stocks,\nbonds, investments, securities, or like instruments, which are the\nsubject matter of this article. Nor shall anything contained in this\nsubdivision be construed to deny to or interfere with the power of the\nattorney-general to bring any other action or proceeding, civil or\ncriminal, against the applicant at any time.\n