§ 5-61-4 — § 5-61-4. Filing, information required.

§ 5-61-4. Filing, information required.

Each filing pursuant to §â€‚5-61-3 shall contain the following information:

(1) The name or names of the seller, including the name under which the seller is doing or intends to do business, if different from the name of the seller, and the name of any parent or affiliated organization:

(i) That will engage in business transactions with purchasers relating to sales solicited by the seller; or

(ii) That accepts responsibility for statements made by or acts of the seller relating to sales solicited by the seller.

(2) The seller's business form and place of organization and, if the seller is a corporation, a copy of its articles of incorporation and bylaws and amendments, or, if a partnership, a copy of the partnership agreement, or if operating under a fictitious business name, the location where the fictitious name is registered. All the same information shall be included for any parent or affiliated organization disclosed pursuant to subsection (1) of this section.

(3) The complete street address or addresses of all locations, designating the principal location from which the telephonic seller will be conducting business. If the principal business location of the seller is not in this state, then the seller shall also designate which of its locations within the state is its main location in the state.

(4) A listing of all telephone numbers to be used by the seller and the address where each telephone using each of these telephone numbers is located.

(5) The name of, and the office held by, the seller's officers, directors, trustees, general and limited partners, sole proprietor, and owners, and the names of those persons who have management responsibilities in connection with the seller's business activities.

(6) The complete address of the principal residence, the date and place of birth, and the driver's license number and state of issuance of each of the persons whose names are disclosed pursuant to subsection (5) of this section.

(7) The name and principal residence address of each person the telephonic seller leaves in charge at each location from which the seller does business in this state, as defined in §â€‚5-61-1, and the business location for which each of these persons is or will be in charge.

(8) A statement, meeting the requirements of this subsection, as to any person identified pursuant to subsection (5) or (7) of this section who:

(i)(A) Has been convicted of a felony or misdemeanor involving an alleged violation of this section, or fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property;

(B) For purposes of this subsection (8)(i), a plea of nolo contendere is a conviction;

(ii) Has had entered against him or her a final judgment or order in a civil or administrative action, including a stipulated judgment or order, if the complaint or petition in the civil or administrative action alleged acts constituting a violation of this section, fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property, the use of untrue or misleading representations in an attempt to sell or dispose of real or personal property, or the use of unfair, unlawful, or deceptive business practices;

(iii) Is subject to any currently effective injunction or restrictive court order relating to business activity as the result of an action brought by a federal, state, or local public agency or unit including, but not limited to, an action affecting any vocational license;

(iv)(A) Has at any time during the previous seven (7) tax years filed in bankruptcy; been adjudged a bankrupt; been reorganized due to insolvency; or been a principal director, officer, trustee, general or limited partner or had management responsibilities of any other corporation, partnership, joint venture, or business entity, that has filed or was adjudicated or reorganized during or within one year after the period that the person held that position.

(B) For the purposes of subsections 8(i), (8)(ii), and (8)(iii), the statement required by subsection (8) shall identify the person, the court, or administrative agency rendering the conviction, judgment, or order; the docket number of the matter; the date of the conviction, judgment, or order; and the name of the governmental agency, if any, that brought the action resulting in the conviction, judgment, or order. For the purposes of this subsection (8)(iv), the statement required by subsection (8) shall include the name and location of the person filing in bankruptcy, adjudged a bankrupt, or reorganized due to insolvency, and shall include the date thereof, the court that exercised jurisdiction, and the docket number of the matter.

(9) A list of names, including date of birth and place of birth and principal residence addresses, of salespersons who solicit on behalf of the telephonic seller and the names the salespersons use while soliciting.

(10) A copy of all sales information and literature (including, but not limited to, scripts, outlines, instructions, and information regarding how to conduct telephonic sales, sample introductions, sample closings, product information, and contest or premium-award information) provided by the telephonic seller to salespersons, or of which the seller informs the salespersons, and a copy of all written materials the seller sends to any prospective or actual purchaser.

(11) If the telephonic seller represents or implies, or directs salespersons to represent or imply, to purchasers that the purchaser will receive certain specific items or one or more items from among bonuses, prizes, or otherwise, the filing shall include the following:

(i) A list of the items offered;

(ii) The value or worth of each item described to prospective purchasers and the basis for the valuation;

(iii) The price paid by the telephonic seller to its supplier for each of these items and the name, address, and telephone number of each item's supplier;

(iv) If the purchaser is to receive fewer than all of the items described by the seller, the filing shall include the following:

(A) The manner in which the telephonic seller decides which item or items a particular prospective purchaser is to receive;

(B) The odds a single prospective purchaser has of receiving each described item;

(C) The name and address of each recipient who has, during the preceding 12 months (or if the seller has not been in business that long, during the period the telephonic seller has been in business) received the item having the greatest value and the item with the smallest odds of being received; and

(v) All rules, regulations, terms, and conditions a prospective purchaser must meet in order to receive the item.

(12) If the telephonic seller is offering to sell any metal, stone, or mineral, the filing shall include the following:

(i) The name, address, and telephone number of each of the seller's suppliers and a description of each metal, stone, or mineral provided by the supplier;

(ii) If possession of any metal, stone, or mineral is to be retained by the seller or will not be transferred to the purchaser until the purchaser has paid in full, the filing shall include the following:

(A) The address of each location where the metal, stone, or mineral will be kept;

(B) If not kept on premises owned by the seller or at an address or addresses set forth in compliance with subsection (12)(ii)(C), the name of the owner of the business at which the metal, stone, or mineral will be kept; and

(C) A copy of any contract or other document that evidences the seller's right to store the metal, stone, or mineral at the address or addresses designated pursuant to subsection (12)(ii)(A);

(iii) If the seller is not selling the metal, stone, or mineral from its own inventory, but instead purchases the metal, stone, or mineral to fill orders taken from purchases, the filing shall include copies of all contracts or other documents evidencing the seller's ability to call upon suppliers to fill the seller's orders;

(iv) If the seller represents to purchasers that the seller has insurance or a surety bond of any type relating to a purchaser's purchase of any metal, stone, or mineral from the seller, the filing shall include a complete copy of all these insurance policies and bonds; and

(v) If the seller makes any representation as to the earning or profit potential of purchases of any metal, stone, or mineral, the filing shall include data to substantiate the claims made. If the representation relates to previous sales made by the seller or a related entity, substantiating data shall be based on the experiences of at least fifty percent (50%) of the persons who have purchased the particular metal, stone, or mineral from the seller or related entity during the preceding six months (or if the seller or related entity has not been in business that long, during the period the seller or related entity has been in business) and shall include the raw data upon which the representation is based, including, but not limited to, all of the following:

(A) The length of time the seller or related entity has been selling the particular metal, stone or mineral being offered;

(B) The number of purchasers from the seller or related entity known to the seller or related entity to have made at least the same earnings or profit as those represented; and

(C) The percentage that the number disclosed pursuant to subsection (12)(v)(B) represents of the total number of purchasers from the seller or related entity of the particular metal, stone, or mineral.

(13) If the telephonic seller is offering to sell an interest in oil, gas, or mineral fields, wells, or exploration sites, the filing shall include disclosure of the following:

(i) The seller's ownership interest, if any, in each field, well, or site being offered for sale;

(ii) The total number of interests to be sold in each field, well, or site being offered for sale;

(iii) If, in selling an interest in any particular field, well, or site, reference is made to an investigation of these fields, wells, or sites by the seller or anyone else, the filing shall include the following:

(A) The name, business address, telephone number, and professional credentials of the person or persons who made the investigation; and

(B) A copy of the report and documents relating to the investigation prepared by the person or persons;

(iv) If the seller makes any representation as to the earning or profit potential of purchases of any interest in these fields, wells, or sites, the filing shall include data to substantiate the claims made. If the representation relates to previous sales made by the seller or related entity, then substantiating data shall be based on the experiences of at least fifty percent (50%) of the purchasers of the particular interests from the seller or the related entity during the preceding six months (or if the seller has not been in business that long, during the period the seller or related entity has been in business) and shall include the raw data upon which the representation is based, including, but not limited to, all of the following:

(A) The length of time the seller or related entity has been selling the particular interests in the fields, wells, or sites being offered;

(B) The number of purchasers of the particular interests from the seller or related entity known to the seller to have made, at least the same earnings as those represented; and

(C) The percentage the number disclosed pursuant to subsection (13)(iv)(B) represents of the total number of purchasers of the particular interests from the seller or related entity.

Legislative History

P.L. 1987, ch. 227, § 1; P.L. 1991, ch. 327, § 1; P.L. 2009, ch. 310, § 39.