Any person who purchases a security in violation of s. 551.41 (2)
is liable to the person selling the security to him or her, who may sue either at law or in equity to recover the security and reasonable attorney fees, plus any income received by the purchaser thereon, upon tender of the consideration received, or for damages and reasonable attorney fees if the purchaser no longer owns the security. Damages are the excess of the value of the security when the purchaser disposed of it, plus interest at the legal rate under s. 138.04
from the date of disposition, over the consideration paid for the security. Tender requires only notice of willingness to pay the amount specified in exchange for the security. Any notice may be given by service as in civil actions or by certified mail to the last-known address of the person liable.
A person who purchases a security in violation of s. 551.41 (2)
is not liable under par. (a)
if the seller knew of the untrue statement of a material fact or omission of a statement of a material fact or the person sustains the burden of proof to establish that he or she did not know and in the exercise of reasonable care could not have known of the untrue statement or omission.
Any person who willfully participates in any act or transaction in violation of s. 551.42
shall be liable to any other person who purchases or sells any security at a price which was affected by the act or transaction for the damages sustained as a result of such act or transaction. Damages shall be the difference between the price at which the other person purchased or sold securities and the market value which the securities would have had at the time of his or her purchase or sale in the absence of the act or transaction, plus interest at the legal rate under s. 138.04
and reasonable attorney fees.
Every person who directly or indirectly controls a person liable under sub. (1)
, every partner, principal executive officer or director of such person, every person occupying a similar status or performing similar functions, every employee of such person who materially aids in the act or transaction constituting the violation, and every broker-dealer or agent who materially aids in the act or transaction constituting the violation, are also liable jointly and severally with and to the same extent as such person, unless the person liable hereunder proves that he or she did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There is contribution as in cases of contract among the several persons so liable.
No action shall be maintained under this section unless commenced before the expiration of 3 years after the act or transaction constituting the violation, but the time specified for commencing such action shall be extended by reason of any fact and for the time specified in ss. 893.13
No purchaser may commence an action under this section if, before suit is commenced, the purchaser has received a written offer stating the respect in which liability under this section may have arisen and fairly advising the purchaser of his or her rights; offering to repurchase the security for cash payable on delivery of the security equal to the consideration paid, together with interest at the legal rate under s. 138.04
from the date of payment, less the amount of any income received thereon or, if the purchaser no longer owns the security, offering to pay the purchaser upon acceptance of the offer an amount in cash equal to the damages computed in accordance with sub. (1)
; and stating that the offer may be accepted by the purchaser at any time within a specified period of not less than 30 days after the date of receipt thereof or such shorter period as the division may by rule prescribe; and the purchaser has failed to accept such offer in writing within the specified period.
No seller may commence an action under this section if, before suit is commenced, the seller has received a written offer stating the respect in which liability under this section may have arisen and fairly advising the seller of his or her rights; offering to return the security plus the amount of any income received thereon upon payment of the consideration received, or, if the purchaser no longer owns the security, offering to pay the seller upon acceptance of the offer an amount in cash equal to the damages computed in accordance with sub. (2)
; and providing that the offer may be accepted by the seller at any time within a specified period of not less than 30 days after the date of receipt thereof; and the seller has failed to accept the offer in writing within the specified period.
Offers shall be in the form and contain the information the division by rule prescribes. Every offer under this subsection shall be delivered to the offeree or sent by certified mail addressed to the offeree at the offeree's last-known address. If an offer is not performed in accordance with its terms, suit by the offeree under this section shall be permitted without regard to this subsection.
No person who has made or engaged in the performance of any contract in violation of this chapter or any rule or order hereunder, or who has acquired any purported right under any contract with knowledge of the facts by reason of which its making or performance was in violation, may base any suit on the contract.
Any condition, stipulation or provision binding any person acquiring any security to waive compliance with any provision of this chapter or any rule or order hereunder is void.
The rights and remedies under this chapter are in addition to any other rights or remedies that may exist at law or in equity.
See also s. DFI-Sec 7.03
, Wis. adm. code.
Chapter 551 is not the exclusive remedy for securities fraud. It does not preempt common law fraud remedies. Esser Distributing v. Steidl, 149 Wis. 2d 64
, 437 N.W.2d 884
Sub. (7) is operative only when an innocent party elects rescission and restitution and waives a breach of contract remedy. Criticare Systems, Inc. v. Sentek, Inc. 159 Wis. 2d 639
, 465 N.W.2d 216
(Ct. App. 1990).
Lack of reliance is a defense to all claims based on a misrepresentation theory. The application of sub. (1) (b) does not restrict the defense to claims under s. 551.41 (2). Carney v. Mantuano, 204 Wis. 2d 527
, 554 N.W.2d 854
(Ct. App. 1996), 95-2529
A civil action brought in Wisconsin under federal law is subject to the limitation under sub. (5). Cahill v. Ernst & Ernst, 625 F. 2d 151
An arbitration clause in a securities brokerage contract was enforceable under the federal arbitration act. Sub. (8) was in "actual conflict" with the act and was preempted. Kroog v. Mait, 712 F. 2d 1148
Section 551.59 (5) applies to actions arising out of sales of securities under SEC rules, rather than s. 893.19 (7) [now 893.93 (1) (b)]. Kramer v. Loewi & Co., Inc. 357 F. Supp. 83
Actions under ss.551.41 and 551.59 survive the death of the wrongdoer. Continental Assurance Co. v. American Bankshares Corp. 483 F. Supp. 175
The limitation period under sub. (5) begins to run when the defrauded party is in possession of essential facts that will, if diligently investigated, disclose the fraud. Gieringer v. Silverman, 539 F. Supp. 498
A defrauded party may not recover any indirect or consequential damages under sub. (1) (a). Jersild v. Aker, 775 F. Supp. 1198
Miscellaneous powers. 551.60(1)
The division may by rule or order require any issuer of securities registered or exempted by order of the division under this chapter or predecessor laws to file with the division and distribute to its security holders in this state at least annually specified financial or other information concerning the issuer.
If the division has reason to believe that any offer or sale of an unregistered security is, has been or would be fraudulent to offerees or purchasers, the division may by order summarily prohibit further offers or sales of such security in this state until it is registered under this chapter.
If the division has reason to believe that any security is being or has been offered or sold in this state by any unlicensed person in violation of this chapter or any rule or order hereunder, the division may by order summarily prohibit such person from further offers or sales of securities in this state until licensed under this chapter.
If the division has reason to believe that any unlicensed person is transacting or has transacted business in this state as an investment adviser in violation of this chapter or any rule or order promulgated under this chapter, the division may by order summarily prohibit such person from further engaging in such activity in this state until licensed under this chapter.
If the public interest and the protection of investors so require, the division may by order summarily suspend all trading in this state by broker-dealers and agents in any security for any period specified. No broker-dealer or agent may effect any transaction in, or induce or attempt to induce the purchase or sale of, any security in this state in which trading is so suspended, except in performance of a contract previously entered into. At any time after the issuance of an order under this subsection, any interested person may in writing request that the suspension of trading be vacated. Upon the receipt of a written request, the matter shall be noticed for hearing and a hearing shall be held in the manner provided in s. 551.61 (2)
. After the hearing, the division may order the suspension to be continued until modified or vacated by further order upon a finding that trading in the security will tend to work a fraud upon the purchasers or sellers of the security. Otherwise, the division shall vacate the suspension of trading and no further order may be entered under this subsection with respect to the same security in the absence of changed circumstances justifying an order.
Every corporation, partnership or association having its principal office in this state or whose securities have been registered under this chapter or predecessor laws shall, within 20 days after receipt of written request from the division made in connection with any investigation under s. 551.56 (1)
, furnish the division with a list of all or part of its security holders as the division requests, showing the amount of securities held by each security holder and the date of issuance of such securities and information reasonably related thereto, signed by the president, secretary or partner of the issuer or a person occupying a similar status or performing similar functions.
Administrative assessments; investor education. 551.605(1)(1)
Imposing administrative assessment with certain orders. 551.605(1)(a)(a)
The division or any officer designated by the division may impose an administrative assessment in the amount provided in par. (b)
on any person who is subject to an order that is issued under s. 551.24
or 551.63 (1)
in any of the following circumstances:
Following a hearing under s. 551.61
if the notice delivered to all interested parties includes notice of the division's authority to impose an administrative assessment under this subsection.
Pursuant to an order that is issued under any of the sections referred to in this paragraph and that is stipulated to by each person subject to the administrative assessment.
The amount of an administrative assessment imposed on any person under this subsection may not exceed $5,000 for each act or omission that constitutes the basis for issuing the order under any of the sections referred to in par. (a)
, except that the amount of the administrative assessment may not exceed $50,000 for any person subject to the order.
The division shall include any administrative assessment imposed under this subsection in the order issued under any of the sections referred to in par. (a)
in the manner described in par. (a) 1.
Upon the request of the division, the department of justice may bring a civil action in the circuit court for Dane County to compel payment of any unpaid administrative assessment, unless payment of the administrative assessment is stayed under s. 227.54
The administrative assessment under this subsection is in addition to any other penalty, remedy or sanction under this chapter.
(2) Investor education.
All moneys collected from the administrative assessment under sub. (1)
shall be credited to the appropriation under s. 20.144 (1) (i)
. Subject to s. 20.144 (1) (i)
, the division shall use moneys credited to that appropriation to provide information to residents of this state about investments in securities to help investors and potential investors evaluate their investment decisions, protect themselves from unfair, inequitable or fraudulent offerings, choose their broker-dealers, agents or investment advisers more carefully, be alert for false or misleading advertising or other harmful practices, and know their rights as investors.
History: 1987 a. 381
; 1995 a. 27
Hearings and judicial review. 551.61(1)
No order, other than an order issued summarily subject to sub. (2)
, may be entered by the division under s. 551.24
or 551.53 (2)
without appropriate prior notice to all interested parties, opportunity for a hearing and, except as provided by s. 551.34 (7)
, written findings of fact and conclusions of law.
Within 30 days after the division has issued an order summarily, an interested party may file a written request with the division for a hearing in respect to any matters determined by the order, except a party may file a request for a hearing regarding an order issued under s. 551.60 (3)
at any time. Within 10 days after an interested person files a written request with the division for a hearing, the matter shall be noticed for hearing, and a hearing shall be held within 60 days after notice, unless extended by the division for good cause. During the pendency of any hearing requested under this subsection, the order issued summarily shall remain in effect unless vacated or modified by the division.
After a hearing, the division may issue a final order as appropriate. The final order may affirm, vacate or modify an order issued summarily in effect during the pendency of the hearing as appropriate, or may include such other sanctions as are provided for under s. 551.24
. An order issued summarily against a party becomes a final order if the party fails to request a hearing under sub. (2)
or if the party defaults after requesting a hearing.
Hearings and rehearings shall be public.
Orders of the division are subject to judicial review under ch. 227
but orders originally entered without a hearing may be reviewed only if the party seeking review has requested a hearing within the time provided by sub. (2)
See also ch. DFI-Sec 8
, Wis. adm. code.
Stay of proceedings. 551.62(1)(1)
No permanent or temporary injunction, stay, restraining order or other order shall issue in any proceeding under s. 551.56
suspending or staying any order of the division, except upon application to the circuit court of the appropriate county, notice of which shall be given to the division and other parties to the proceeding, and except after opportunity for hearing thereon. No permanent or temporary injunction, stay, restraining order or other order shall issue in any other proceeding or action, in any court, which shall have the effect of delaying or preventing any such order from becoming effective, unless the parties to the proceeding before the division are also parties to the court proceeding or action, and except after notice and opportunity for hearing thereon.
No permanent or temporary injunction, stay, restraining order or other order shall issue in any proceeding under s. 551.56
or in any other proceeding or action, in any court, suspending or staying any order of the division or having the effect of delaying or preventing any such order from becoming effective, unless an undertaking is entered into on the part of the petitioner or plaintiff, with a surety and in the sum the court or the presiding judge thereof directs or approves to the effect that the petitioner or plaintiff will pay all damages which any party sustains by the suspension or stay of the order or the delay or prevention of the order from becoming effective, and to such other effect as the court or judge directs, and no order or judgment in any proceeding or action shall be stayed on appeal therefrom unless a like undertaking is entered into by the petitioner or plaintiff in addition to the undertaking under s. 808.07
History: 1971 c. 84
; Sup. Ct. Order, 67 Wis. 2d 585
, 776 (1975); 1977 c. 187
; 1983 a. 216
; 1995 a. 27
Rules, forms and orders. 551.63(1)
The division may make, amend and rescind any rules, forms and orders that are necessary to carry out this chapter, including rules and forms governing registration statements, notice filings, applications and reports, and defining any terms, whether or not used in this chapter, insofar as the definitions are not inconsistent with this chapter or federal statutes or regulations. For the purpose of rules and forms, the division may classify securities, persons and matters within the division's jurisdiction, and prescribe different requirements for different classes. Rules shall be made and published in accordance with ch. 227
Except as provided under s. 551.34 (1m) (b)
, no rule, form or order may be made, amended or rescinded unless the division finds that the action is necessary or appropriate in the public interest and for the protection of investors. In prescribing rules and forms the division may cooperate with the securities administrators of other states and the securities and exchange commission with a view to achieving maximum uniformity in the form and content of registration statements, notice filings, applications and reports wherever practicable.
Subject to section 15 of the Securities Exchange Act of 1934 and section 222 of the Investment Advisers Act of 1940, the division may by rule or order prescribe the form and content of financial statements required under this chapter, the circumstances under which consolidated financial statements shall be filed, and whether any required financial statements shall be certified by independent or certified public accountants. All financial statements shall be prepared in accordance with generally accepted accounting practices unless otherwise permitted by rule or order.
No provision of this chapter imposing any liability applies to any act done or omitted in good faith in conformity with any rule, form or order of the division, notwithstanding that the rule, form or order may later be amended or rescinded or be determined to be invalid for any reason.
See also ch. DFI-Sec 9
, Wis. adm. code.
Administrative files and opinions. 551.64(1)
A document is filed when it is received by the division or, if authorized under s. 551.32 (1) (a)
, an organization designated by the division.
The division shall keep a register of all licenses, notice filings and registration statements which are or have ever been effective under this chapter and predecessor laws and all denial, suspension and revocation orders which have been entered under this chapter and predecessor laws. The register shall be open for public inspection.
The information contained in or filed with any registration statement, notice filing, application or report shall be made available to the public in accordance with rules adopted by the division.
The division upon request shall furnish to any person at a reasonable charge photostatic or other copies, certified by the division if certification is requested, of any entry in the register or any order or other document on file with the division. Any copy so certified is admissible in evidence under s. 889.18
The division may honor requests from interested persons for interpretative opinions.
History: 1981 c. 53
; 1995 a. 27
; 1997 a. 316
Service of process. 551.65(1)(1)
Every applicant for license or registration under this chapter, every person filing a notice filing under this chapter and every issuer that proposes to offer a security in this state through any person acting as agent shall file with the division or, if applying for a license, with the organization designated by the division under s. 551.32 (1) (a)
, an irrevocable consent appointing the division to be his or her attorney to receive service of any lawful process in any noncriminal suit, action, or proceeding against him or her or a successor or personal representative that arises under this chapter or any rule or order under this chapter after the consent has been filed, with the same validity as if served personally on the person filing the consent. The consent shall be in the form the division by rule prescribes. The consent need not be filed by a person who has filed a consent in connection with a previous registration or notice filing or license that is then in effect. Service may be made by leaving a copy of the process at the office of the division, but it is not effective unless the plaintiff, who may be the division in a suit, action, or proceeding instituted by the division, promptly sends notice of the service and a copy of the process by registered or certified mail to the defendant or respondent at the person's last address on file with the division, and the plaintiff's affidavit of compliance with this subsection is filed in the case on or before the return day of the process, or within such time as the court allows.
When any person, including any nonresident of this state, engages in conduct prohibited or made actionable by this chapter or any rule or order under this chapter, and the person has not filed a consent to service of process under sub. (1)
and personal jurisdiction over the person cannot otherwise be obtained in this state, that conduct shall be considered equivalent to the person's appointment of the division to be his or her attorney to receive service of any lawful process in any noncriminal suit, action, or proceeding against the person or the person's successor or personal representative that arises out of that conduct and that is brought under this chapter or any rule or order under this chapter, with the same validity as if served on him or her personally. Service may be made by leaving a copy of the process at the office of the division, but it is not effective unless the plaintiff, who may be the division in a suit, action, or proceeding instituted by the division, promptly sends notice of the service and a copy of the process by registered or certified mail to the defendant or respondent at the person's last-known address or takes other steps that are reasonably calculated to give actual notice, and the plaintiff's affidavit of compliance with this subsection is filed in the case on or before the return day of the process, or within such time as the court allows.
When process is served under this section the court, or the division in a proceeding before the division, shall order such continuance as is necessary to afford the defendant or respondent reasonable opportunity to defend.
Scope of chapter. 551.66(1)(1)
The provisions of this chapter concerning sales and offers to sell apply when a sale or offer to sell is made in this state or when an offer to purchase is made and accepted in this state. The provisions concerning purchases and offers to purchase apply when a purchase or offer to purchase is made in this state or an offer to sell is made and accepted in this state.
For the purpose of this section, an offer to sell or to purchase is made in this state, whether or not either party is then present in this state, when the offer originates from this state or is directed by the offeror to this state and received by the offeree in this state, but for the purpose of s. 551.21
, an offer to sell which is not directed to or received by the offeree in this state is not made in this state.
For the purpose of this section, an offer to purchase or to sell is accepted in this state when acceptance is communicated to the offeror in this state, and has not previously been communicated to the offeror, orally or in writing, outside this state; and 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 by the offeror in this state.
An offer to sell or to purchase is not made in this state when the publisher circulates or there is circulated on the publisher's behalf in this state any bona fide newspaper or other publication of general, regular and paid circulation which is not published in this state, or a radio or television program originating outside this state is received in this state.
History: 1971 c. 84
; 1981 c. 53
This section focuses on locus of certain actions, regardless of either party's presence. Feitler v. Midas Associates, 418 F. Supp. 735
This chapter shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact the "Uniform Securities Act" and to coordinate the interpretation and administration of this chapter with related federal regulation.