§ 17-4-509 — Civil Liability

(a) Enforcement of civil liability under this section is
subject to the Securities Litigation Uniform Standards Act of
1998.
(b) A person is liable to the purchaser if the person
sells a security in violation of W.S. 17-4-301 or, by means of
an untrue statement of a material fact or an omission to state a
material fact necessary in order to make the statement made, in
light of the circumstances under which it is made, not
misleading, the purchaser not knowing the untruth or omission
and the seller not sustaining the burden of proof that the
seller did not know and, in the exercise of reasonable care,
could not have known of the untruth or omission. An action under
this subsection is governed by the following:
(i) The purchaser may maintain an action to recover
the consideration paid for the security, less the amount of any
income received on the security, and interest at six percent
(6%) per year from the date of the purchase, costs, and
reasonable attorneys' fees determined by the court, upon the
tender of the security, or for actual damages as provided in
paragraph (iii) of this subsection;
(ii) The tender referred to in paragraph (i) of this
subsection may be made any time before entry of judgment.
Tender requires only notice in a record of ownership of the
security and willingness to exchange the security for the amount
specified. A purchaser that no longer owns the security may
recover actual damages as provided in paragraph (iii) of this
subsection;
(iii) Actual damages in an action arising under this
subsection are the amount that would be recoverable upon a
tender less the value of the security when the purchaser
disposed of it, and interest at six percent (6%) per year from
the date of the purchase, costs and reasonable attorneys' fees
determined by the court.
(c) A person is liable to the seller if the person buys a
security by means of an untrue statement of a material fact or
omission to state a material fact necessary in order to make the
statement made, in light of the circumstances under which it is
made, not misleading, the seller not knowing of the untruth or
omission, and the purchaser not sustaining the burden of proof
that the purchaser did not know, and in the exercise of
reasonable care, could not have known of the untruth or
omission. An action under this subsection is governed by the
following:
(i) The seller may maintain an action to recover the
security, and any income received on the security, costs, and
reasonable attorneys' fees determined by the court, upon the
tender of the purchase price, or for actual damages as provided
in paragraph (iii) of this subsection;
(ii) The tender referred to in paragraph (i) of this
subsection may be made any time before entry of judgment. Tender
requires only notice in a record of the present ability to pay
the amount tendered and willingness to take delivery of the
security for the amount specified. If the purchaser no longer
owns the security, the seller may recover actual damages as
provided in paragraph (iii) of this subsection;
(iii) Actual damages in an action arising under this
subsection are the difference between the price at which the
security was sold and the value the security would have had at
the time of the sale in the absence of the purchaser's conduct
causing liability, and interest at six percent (6%) per year
from the date of the sale of the security, costs, and reasonable
attorneys' fees determined by the court.
(d) A person acting as a broker-dealer or agent that sells
or buys a security in violation of W.S. 17-4-401(a),
17-4-402(a), or 17-4-506 is liable to the customer. The
customer, if a purchaser, may maintain an action for recovery of
actual damages as specified in paragraphs (b)(i) through (iii)
of this section, or, if a seller, for a remedy as specified in
paragraphs (c)(i) through (iii) of this section.
(e) A person acting as an investment adviser or investment
adviser representative that provides investment advice for
compensation in violation of W.S. 17-4-403(a), 17-4-404(a), or
17-4-506 is liable to the client. The client may maintain an
action to recover the consideration paid for the advice,
interest at the rate of six percent (6%) per year from the date
of payment, costs, and reasonable attorneys' fees determined by
the court.
(f) A person that receives directly or indirectly any
consideration for providing investment advice to another person
and that employs a device, scheme, or artifice to defraud the
other person or engages in an act, practice, or course of
business that operates or would operate as a fraud or deceit on
the other person, is liable to the other person. An action under
this subsection is governed by the following:
(i) The person defrauded may maintain an action to
recover the consideration paid for the advice and the amount of
any actual damages caused by the fraudulent conduct, interest at
six percent (6%) per year from the date of the fraudulent
conduct, costs, and reasonable attorneys' fees determined by the
court, less the amount of any income received as a result of the
fraudulent conduct;
(ii) This subsection does not apply to a
broker-dealer or its agents if the investment advice provided is
solely incidental to transacting business as a broker-dealer and
no special compensation is received for the investment advice.
(g) The following persons are liable jointly and severally
with and to the same extent as persons liable under subsections
(b) through (f) of this section:
(i) A person that directly or indirectly controls a
person liable under subsections (b) through (f) of this section,
unless the controlling person sustains the burden of proof that
the person did not know, and in the exercise of reasonable care
could not have known, of the existence of conduct by reason of
which the liability is alleged to exist;
(ii) An individual who is a managing partner,
executive officer, or director of a person liable under
subsections (b) through (f) of this section, including an
individual having a similar status or performing similar
functions, unless the individual sustains the burden of proof
that the individual did not know and, in the exercise of
reasonable care could not have known, of the existence of
conduct by reason of which the liability is alleged to exist;
(iii) An individual who is an employee of or
associated with a person liable under subsections (b) through
(f) of this section and who materially aids the conduct giving
rise to the liability, unless the individual sustains the burden
of proof that the individual did not know and, in the exercise
of reasonable care could not have known, of the existence of
conduct by reason of which the liability is alleged to exist;
and
(iv) A person that is a broker-dealer, agent,
investment adviser, or investment adviser representative that
materially aids the conduct giving rise to the liability under
subsections (b) through (f) of this section, unless the person
sustains the burden of proof that the person did not know and,
in the exercise of reasonable care could not have known, of the
existence of conduct by reason of which liability is alleged to
exist.
(h) A person liable under this section has a right of
contribution as in cases of contract against any other person
liable under this section for the same conduct.
(j) A cause of action under this section survives the
death of an individual who might have been a plaintiff or
defendant.
(k) A person may not obtain relief:
(i) Under subsection (b) of this section for
violation of W.S. 17-4-301, or under subsection (d) or (e) of
this section, unless the action is instituted within one (1)
year after the violation occurred; or
(ii) Under subsection (b) of this section, other than
for violation of W.S. 17-4-301, or under subsection (c) or (f)
of this section, unless the action is instituted within the
earlier of two (2) years after discovery of the facts
constituting the violation or five (5) years after the
violation.
(m) A person that has made, or has engaged in the
performance of, a contract in violation of this act or a rule
adopted or order issued under this act, or that has acquired a
purported right under the contract with knowledge of conduct by
reason of which its making or performance was in violation of
this act, may not base an action on the contract.
(n) A condition, stipulation, or provision binding a
person purchasing or selling a security or receiving investment
advice to waive compliance with this act or a rule adopted or
order issued under this act is void.
(o) The rights and remedies provided by this act are in
addition to any other rights or remedies that may exist, but
this act does not create a cause of action not specified in this
section or W.S. 17-4-411(e).