CHAPTER 6. ADMINISTRATION AND JUDICIAL REVIEW
IC 23-19-6
Chapter 6. Administration and Judicial Review
IC 23-19-6-1
Securities division; securities commissioner; unlawful use ofnonpublic information; investor education initiatives; securitiesdivision enforcement account; securities restitution fund;assistance from attorney general; police powers
Sec. 1. (a) This article shall be administered by a division of theoffice of the secretary of state. The secretary of state shall appoint asecurities commissioner who shall be responsible for the directionand supervision of the division and the administration of this articleunder the direction and control of the secretary of state. The salaryof the securities commissioner shall be paid out of the fundsappropriated for the administration of this article. The commissionershall serve at the will of the secretary of state.
(b) The secretary of state:
(1) shall employ a chief deputy, attorneys, a senior investigator,a senior accountant, and other deputies, investigators,accountants, clerks, stenographers, and other employeesnecessary for the administration of this article; and
(2) shall fix their compensation with the approval of the budgetagency.
(c) It is unlawful for the commissioner or an officer, employee, ordesignee of the commissioner to use for personal benefit or thebenefit of others records or other information obtained by or filedwith the commissioner that are not public under section 7(b) of thischapter. This article does not authorize the commissioner or anofficer, employee, or designee of the commissioner to disclose therecord or information, except in accordance with section 2, 7(c), or8 of this chapter.
(d) This article does not create or diminish a privilege orexemption that exists at common law, by statute or rule, orotherwise.
(e) Subject to IC 4-2-6-15, the commissioner may develop andimplement investor education initiatives to inform the public aboutinvesting in securities, with particular emphasis on the preventionand detection of securities fraud. In developing and implementingthese initiatives, the commissioner may collaborate with public andnonprofit organizations with an interest in investor education. Thecommissioner may accept a grant or donation from a person that isnot affiliated with the securities industry or from a nonprofitorganization, regardless of whether the organization is affiliated withthe securities industry, to develop and implement investor educationinitiatives. This subsection does not authorize the commissioner torequire participation or monetary contributions of a registrant in aninvestor education program.
(f) Fees and funds of whatever character accruing from theadministration of this article shall be accounted for by the secretaryof state and shall be deposited with the treasurer of state to be
deposited by the treasurer of the state in either the state general fundor the enforcement account referenced below. Subject to IC 4-2-6-15,expenses incurred in the administration of this article shall be paidfrom the state general fund upon appropriation being made for theexpenses in the manner provided by law for the making of thoseappropriations. However, grants and donations received undersubsection (e), costs of investigations recovered under section 4(e)of this chapter, and civil penalties recovered under sections 3(b) and4(d) of this chapter shall be deposited by the treasurer of state in aseparate account to be known as the securities division enforcementaccount. Notwithstanding IC 9-23-6-4, IC 23-2-2.5-34,IC 23-2-2.5-43, IC 23-2-5-7, IC 23-19-4-12, IC 25-11-1-15, and thischapter, five percent (5%) of funds received after June 30, 2010, fordeposit in the enforcement account shall instead be deposited in thesecurities restitution fund established under IC 23-20-1-26. Subjectto IC 4-2-6-15, the funds deposited in the enforcement account shallbe available, with the approval of the budget agency:
(1) to augment and supplement the funds appropriated for theadministration of this article; and
(2) for grants and awards to nonprofit entities for programs andactivities that will further investor education and financialliteracy in the state.
The funds in the enforcement account do not revert to the stategeneral fund at the end of any state fiscal year.
(g) In connection with the administration and enforcement of thisarticle, the attorney general shall render all necessary assistance tothe commissioner upon the commissioner's request, and to that end,the attorney general shall employ legal and other professionalservices as are necessary to adequately and fully perform the serviceunder the direction of the commissioner as the demands of thesecurities division shall require. Expenses incurred by the attorneygeneral for the purposes stated in this subsection shall be chargeableagainst and paid out of funds appropriated to the attorney general forthe administration of the attorney general's office. The attorneygeneral may authorize the commissioner and the commissioner'sdesignee to represent the commissioner and the securities division inany proceeding involving enforcement or defense of this article.
(h) Neither the secretary of state, the commissioner, nor anemployee of the securities division shall be liable in their individualcapacity, except to the state, for an act done or omitted in connectionwith the performance of their respective duties under this article.
(i) The commissioner shall take, prescribe, and file the oath ofoffice prescribed by law. The commissioner, chief deputycommissioner, and each attorney or investigator designated by thecommissioner are police officers of the state and shall have all thepowers and duties of police officers in making arrests for violationsof this article, or in serving any process, notice, or order connectedwith the enforcement of this article by whatever officer, authority, orcourt issued and shall comprise the enforcement department of thedivision and are considered a criminal justice agency for purposes of
IC 5-2-4 and IC 10-13-3.
(j) The provisions of this article delegating and granting power tothe secretary of state, the securities division, and the commissionershall be liberally construed to the end that:
(1) the practice or commission of fraud may be prohibited andprevented;
(2) disclosure of sufficient and reliable information in order toafford reasonable opportunity for the exercise of independentjudgment of the persons involved may be assured; and
(3) the qualifications may be prescribed to assure availability ofreliable broker-dealers, investment advisers, and agents engagedin and in connection with the issuance, barter, sale, purchase,transfer, or disposition of securities in this state.
It is the intent and purpose of this article to delegate and grant to andvest in the secretary of state, the securities division, and thecommissioner full and complete power to carry into effect andaccomplish the purpose of this article and to charge them with fulland complete responsibility for its effective administration.
(k) Copies of any statement and documents filed in the office ofthe secretary of state and of any records of the secretary of statecertified by the commissioner shall be admissible in any prosecution,action, suit, or proceeding based upon, arising out of, or under thisarticle to the same effect as the original of such statement, document,or record would be if actually produced.
(l) IC 4-21.5 is not applicable to any of the proceedings under thisarticle.
As added by P.L.27-2007, SEC.23. Amended by P.L.114-2010,SEC.10.
IC 23-19-6-2
Investigations; subpoenas; depositions; relief; hearings; useimmunity; certificate of compliance or noncompliance; witness fees
Sec. 2. (a) The commissioner may:
(1) conduct public or private investigations within or outsidethis state which the commissioner considers necessary orappropriate to determine whether a person has violated, isviolating, or is about to violate this article or a rule adopted ororder issued under this article, or to aid in the enforcement ofthis article or in the adoption of rules and forms under thisarticle;
(2) require or permit a person to testify, file a statement, orproduce a record, under oath or otherwise as the commissionerdetermines, as to all the facts and circumstances concerning amatter to be investigated or about which an action or proceedingis to be instituted; and
(3) publish a record concerning an action, proceeding, or aninvestigation under, or a violation of, this article or a ruleadopted or order issued under this article if the commissionerdetermines it is necessary or appropriate in the public interestand for the protection of investors. (b) For the purpose of an investigation under this article, thecommissioner or the commissioner's designated officer mayadminister oaths and affirmations, subpoena witnesses, seekcompulsion of attendance, take evidence, require the filing ofstatements, and require the production of any records that thecommissioner considers relevant or material to the investigation.Upon order of the commissioner or a hearing officer appointed by thecommissioner in any hearing, depositions may be taken in themanner prescribed by law for depositions in civil actions and madereturnable to the commissioner or a hearing officer appointed by thecommissioner.
(c) If a person does not appear or refuses to testify, file astatement, or produce records, or otherwise does not obey a subpoenaas required by this article, the commissioner or hearing officerappointed by the commissioner may apply to the circuit or superiorcourt in the county where the hearing, investigation, or inquiry inquestion is being conducted to enforce compliance. The court may:
(1) hold the person in contempt;
(2) order the person to appear before the commissioner orhearing officer appointed by the commissioner;
(3) order the person to testify about the matter underinvestigation or in question;
(4) order the production of records;
(5) grant injunctive relief, including restricting or prohibitingthe offer or sale of securities or the providing of investmentadvice;
(6) impose a civil penalty of not more than twenty thousanddollars ($20,000) for each violation; and
(7) grant any other necessary or appropriate relief.
(d) This section does not preclude a person from applying to thecircuit or superior court in the county where the hearing,investigation, or inquiry in question is being conducted for relieffrom a request to appear, testify, file a statement, produce records, orobey a subpoena.
(e) If a witness, in any hearing, inquiry, or investigationconducted under this article, refuses to answer any question orproduce any item, the commissioner may file a written petition withthe circuit or superior court in the county where the hearing,investigation, or inquiry in question is being conducted requesting ahearing on the refusal. The court shall hold a hearing to determine ifthe witness may refuse to answer the question or produce the item.If the court determines that the witness, based upon the witness'sprivilege against self-incrimination, may properly refuse to answeror produce an item, the commissioner may make a written requestthat the court grant use immunity to the witness. Upon writtenrequest of the commissioner, the court shall grant use immunity to awitness. The court shall instruct the witness, by written order or inopen court, that:
(1) any evidence the witness gives, or evidence derived fromthat evidence, may not be used in any criminal proceedings
against that witness, unless the evidence is volunteered by thewitness or is not responsive to a question; and
(2) the witness must answer the questions asked and producethe items requested. A grant of use immunity does not prohibitthe use of evidence that the witness gives in a hearing,investigation, or inquiry from being used in a prosecution forperjury under IC 35-44-2-1. If a witness refuses to give theevidence after the witness has been granted use immunity, thecourt may find the witness in contempt.
(f) At the request of the securities regulator of another state or aforeign jurisdiction, the commissioner may provide assistance if therequesting regulator states that it is conducting an investigation todetermine whether a person has violated, is violating, or is about toviolate a law or rule of the other state or foreign jurisdiction relatingto securities matters that the requesting regulator administers orenforces. The commissioner may provide the assistance by using theauthority to investigate and the powers conferred by this section asthe commissioner determines is necessary or appropriate. Theassistance may be provided without regard to whether the conductdescribed in the request would also constitute a violation of thisarticle or other law of this state if occurring in this state. In decidingwhether to provide the assistance, the commissioner may considerwhether the requesting regulator is permitted and has agreed toprovide assistance reciprocally within its state or foreign jurisdictionto the commissioner on securities matters when requested; whethercompliance with the request would violate or prejudice the publicpolicy of this state; and the availability of resources and employeesof the commissioner to carry out the request for assistance.
(g) In any prosecution, action, suit, or proceeding based upon orarising out of or under the provisions of this article, a certificate dulysigned by the commissioner showing compliance or noncompliancewith the provisions of this article, respecting the security in questionor respecting compliance or noncompliance of this article, by anyissuer, broker-dealer, investment advisor, or agent, shall constituteprima facie evidence of compliance or noncompliance with theprovisions of this article, as the case may be, and shall be admissiblein evidence in any action at law or in equity to enforce this article.
(h) Each witness who shall appear before the commissioner or ahearing officer appointed by the commissioner by order shall receivefor the witness's attendance the fees and mileage provided forwitnesses in civil cases, which shall be audited and paid by the statein the same manner as other expenses of the securities division areaudited and paid upon the presentation of proper vouchers sworn toby the witnesses and approved by the commissioner. However, nowitnesses subpoenaed at the instance of parties other than thecommissioner or a hearing officer appointed by the commissionershall be entitled to any fee or compensation from the state.
As added by P.L.27-2007, SEC.23.
IC 23-19-6-3 Violations; injunctions; other remedies
Sec. 3. (a) If the commissioner believes that a person has engaged,is engaging, or is about to engage in an act, practice, or course ofbusiness constituting a violation of this article or a rule adopted ororder issued under this article or that a person has, is, or is about toengage in an act, practice, or course of business that materially aidsa violation of this article or a rule adopted or order issued under thisarticle, the commissioner may maintain an action in the circuit orsuperior court in the county where the investigation or inquiry inquestion is being conducted to enjoin the act, practice, or course ofbusiness and to enforce compliance with this article or a rule adoptedor order issued under this article.
(b) In an action under this section and on a proper showing, thecourt may:
(1) issue a permanent or temporary injunction, restraining order,or declaratory judgment;
(2) order other appropriate or ancillary relief, which mayinclude:
(A) an asset freeze, accounting, writ of attachment, writ ofgeneral or specific execution, and appointment of a receiveror conservator;
(B) ordering a receiver or conservator appointed underclause (A) to take charge and control of a respondent'sproperty, including investment accounts and accounts in adepository institution, rents, and profits; to collect debts; andto acquire and dispose of property;
(C) imposing a civil penalty up to ten thousand dollars($10,000) per violation and an order of rescission,restitution, or disgorgement directed to a person that hasengaged in an act, practice, or course of businessconstituting a violation of this article or the predecessor actor a rule adopted or order issued under this article or thepredecessor act; and
(D) ordering the payment of prejudgment and postjudgmentinterest; or
(3) order such other relief as the court considers appropriate.
(c) The commissioner may not be required to post a bond in anaction or proceeding under this article.
(d) Penalties collected under this section shall be deposited in thesecurities division enforcement account established under section 1of this chapter.
As added by P.L.27-2007, SEC.23.
IC 23-19-6-4
Violations; investigations; cease and desist orders and otherorders; hearings; civil penalties; appeals; civil contempt; certifiedcopy of order
Sec. 4. (a) If the commissioner determines that a person hasengaged, is engaging, or is about to engage in an act, practice, orcourse of business constituting a violation of this article or a rule
adopted or order issued under this article or that a person hasmaterially aided, is materially aiding, or is about to materially aid anact, practice, or course of business constituting a violation of thisarticle or a rule adopted or order issued under this article, thecommissioner may:
(1) investigate and may issue, with or without a prior hearing,orders and notices as the commissioner determines to be in thepublic interest, including cease and desist orders, orders toshow cause, and notices. After notice and hearing, thecommissioner may enter an order of rescission, restitution, ordisgorgement, including interest at the legal rate of interest,directed to a person who has violated this article or a rule ororder under this article;
(2) issue an order denying, suspending, revoking, orconditioning the exemptions for a broker-dealer underIC 23-19-4-1(b)(1)(D) or IC 23-19-4-1(b)(1)(F) or aninvestment adviser under IC 23-19-4-3(b)(1)(C); or
(3) issue an order under IC 23-19-2-4.
(b) An order under subsection (a) is effective on the date ofissuance. Upon issuance of the order, the commissioner shallpromptly serve each person subject to the order with a copy of theorder and a notice that the order has been entered. The order mustinclude a statement whether the commissioner will seek a civilpenalty or costs of the investigation, a statement of the reasons forthe order, and notice that, within fifteen (15) days after receipt of arequest in a record from the person, the matter will be scheduled fora hearing. If a person subject to the order does not request a hearingand none is ordered by the commissioner within forty-five (45) daysafter the date of service of the order, the order, which may include acivil penalty or costs of the investigation if a civil penalty or costswere sought in the statement accompanying the order, becomes finalas to that person by operation of law. If a hearing is requested orordered, the commissioner, after notice of and opportunity forhearing to each person subject to the order, may modify or vacate theorder or extend it until final determination.
(c) If a hearing is requested or ordered under subsection (b), thehearing must be held not later than fifteen (15) business days afterreceipt if the original order issued by the commissioner was asummary suspension, summary revocation, or denial of a license andnot later than forty-five (45) business days after receipt for all otherorders. A final order may not be issued unless the commissionermakes findings of fact and conclusions of law in a record. The finalorder may make final, vacate, or modify the order issued undersubsection (a).
(d) In a final order under subsection (c), the commissioner mayimpose a civil penalty up to ten thousand dollars ($10,000) perviolation. Penalties collected under this section shall be deposited inthe securities division enforcement account established under section1 of this chapter.
(e) In a final order, the commissioner may charge the cost of an
investigation or proceeding for a violation of this article or a ruleadopted or order issued under this article.
(f) If a petition for judicial review of a final order is not filed inaccordance with section 9 of this chapter, the commissioner may filea certified copy of the final order with the clerk of a court withjurisdiction. The order so filed has the same effect as a judgment ofthe court and may be recorded, enforced, or satisfied in the samemanner as a judgment of the court.
(g) If a person does not comply with an order under this section,the commissioner may petition a court with jurisdiction to enforcethe order. The court may not require the commissioner to post a bondin an action or proceeding under this section. If the court finds, afterservice and opportunity for hearing, that the person was not incompliance with the order, the court may adjudge the person in civilcontempt of the order. The court may impose a further civil penaltyagainst the person for contempt in an amount not greater than twentythousand dollars ($20,000) for each violation and may grant anyother relief the court determines is just and proper in thecircumstances.
(h) The commissioner shall send a certified copy of every finalorder that suspends or revokes a person's registration under thisarticle, or that orders a person who is not registered under this articleto cease and desist from violating this article, to the insurancecommissioner appointed under IC 27-1-1-2. The insurancecommissioner shall act in accordance with IC 27-1-15.6-29.5.
As added by P.L.27-2007, SEC.23. Amended by P.L.156-2009,SEC.24.
IC 23-19-6-5
Rules, forms, and orders; financial statements; interpretiveopinions and determinations; good faith conduct; public hearings
Sec. 5. (a) The commissioner may:
(1) issue forms and orders and, after notice and comment, mayadopt and amend rules necessary or appropriate to carry out thisarticle and may repeal rules, including rules and formsgoverning registration statements, applications, notice filings,reports, and other records;
(2) by rule, define terms, whether or not used in this article, butthose definitions may not be inconsistent with this article; and
(3) by rule, classify securities, persons, and transactions andadopt different requirements for different classes.
(b) Under this article, a rule or form may not be adopted oramended, or an order issued or amended, unless the commissionerfinds that the rule, form, order, or amendment is necessary orappropriate in the public interest or for the protection of investorsand is consistent with the purposes intended by this article.
(c) Subject to Section 15(h) of the Securities Exchange Act of1938 (15 U.S.C. 78o(h)) and Section 222 of the Investment AdvisersAct of 1940 (15 U.S.C. 80b-18a), the commissioner may require thata financial statement filed under this article be prepared in
accordance with generally accepted accounting principles in theUnited States and comply with other requirements specified by ruleadopted or order issued under this article. A rule adopted or orderissued under this article may establish:
(1) subject to Section 15(h) of the Securities Exchange Act of1934 (15 U.S.C. 78o(h)) and Section 222 of the InvestmentAdvisers Act of 1940 (15 U.S.C. 80b-18a), the form and contentof financial statements required under this article;
(2) whether unconsolidated financial statements must be filed;and
(3) whether required financial statements must be audited by anindependent certified public accountant.
(d) The commissioner may provide interpretative opinions orissue determinations that the commissioner will not institute aproceeding or an action under this article against a specified personfor engaging in a specified act, practice, or course of business if thedetermination is consistent with this article. The commissioner shallcharge a fee of one hundred dollars ($100) for an interpretativeopinion or determination.
(e) A penalty under this article may not be imposed for, andliability does not arise from, conduct that is engaged in or omitted ingood faith and reasonably believed to be conforming to a rule, form,or order of the commissioner under this article.
(f) A hearing in an administrative proceeding under this articlemust be conducted in public unless the commissioner finds astatutory basis that would allow the hearing to be closed to thepublic.
As added by P.L.27-2007, SEC.23. Amended by P.L.230-2007,SEC.19; P.L.3-2008, SEC.172.
IC 23-19-6-6
Public register of filings; charges
Sec. 6. (a) The commissioner shall maintain, or designate a personto maintain, a register of applications for registration of securities;registration statements; notice filings; applications for registration ofbroker-dealers, agents, investment advisers, and investment adviserrepresentatives; notice filings by federal covered investment advisersthat are or have been effective under this article or the predecessoract; notices of claims of exemption from registration or notice filingrequirements contained in a record; orders issued under this articleor the predecessor act; and interpretative opinions or no-actiondeterminations issued under this article.
(b) The commissioner shall make all rules, forms, interpretativeopinions, and orders available to the public.
(c) The commissioner shall furnish a copy of a record that is apublic record, or a certification that the public record does not exist,to a person that so requests. A rule adopted under this article mayestablish a reasonable charge for furnishing the record orcertification. A copy of the record certified or a certificate by thecommissioner of a record's nonexistence is prima facie evidence of
a record or its nonexistence.
As added by P.L.27-2007, SEC.23.
IC 23-19-6-7
Public records; inspection and copying; confidential records
Sec. 7. (a) Except as otherwise provided in subsection (b), recordsobtained by the commissioner or filed under this article, including arecord contained in or filed with a registration statement, application,notice filing, or report, are public records and are available forinspection and copying.
(b) The following records are confidential and are not availablefor public inspection and copying under subsection (a):
(1) A record obtained by the commissioner in connection withan audit or inspection under IC 23-19-4-11(d) or aninvestigation under section 2 of this chapter.
(2) A part of a record filed in connection with a registrationstatement under IC 23-19-3-1 and IC 23-19-3-3 throughIC 23-19-3-5 or a record under IC 23-19-4-11(d) that containstrade secrets or confidential information if the person filing theregistration statement or report has asserted a claim ofconfidentiality or privilege that is authorized by law andapproved by the commissioner.
(3) A record that is not required to be provided to thecommissioner or filed under this article and is provided to thecommissioner only on the condition that the record will not besubject to public examination or disclosure.
(4) Confidential records received from a person specified insection 8(a) of this chapter.
(5) Any Social Security number, residential address unless usedas a business address, and residential telephone number unlessused as a business telephone number, contained in a record thatis filed.
(6) A record obtained by the commissioner through a designeeof the commissioner that a rule or order under this articledetermines has been:
(A) expunged from the commissioner's records by thedesignee; or
(B) determined to be confidential by that designee if thecommissioner finds the determination to be based onstatutory authority.
(c) If disclosure is for the purpose of a civil, administrative, orcriminal investigation, action, or proceeding or to a person specifiedin section 8(a) of this chapter, the commissioner may disclose arecord obtained in connection with an audit or inspection underIC 23-19-4-11(d) or a record obtained in connection with aninvestigation under section 2 of this chapter.
As added by P.L.27-2007, SEC.23. Amended by P.L.230-2007,SEC.20.
IC 23-19-6-8 Uniformity objective; cooperation with agencies; policies
Sec. 8. (a) The commissioner shall, in its discretion, cooperate,coordinate, consult, and, subject to section 7 of this chapter, sharerecords and information with the securities regulator of another state,Canada, a Canadian province or territory, a foreign jurisdiction, theSecurities and Exchange Commission, the United States Departmentof Justice, the Commodity Futures Trading Commission, the FederalTrade Commission, the Securities Investor Protection Corporation,a self-regulatory organization, a national or internationalorganization of securities regulators, a federal or state banking andinsurance regulator, or a governmental law enforcement agency toeffectuate greater uniformity in securities matters among the federalgovernment, self-regulatory organizations, states, and foreigngovernments.
(b) In cooperating, coordinating, consulting, and sharing recordsand information under this section and in acting by rule, order, orwaiver under this article, the commissioner shall, in its discretion,take into consideration in carrying out the public interest thefollowing general policies:
(1) Maximizing effectiveness of regulation for the protection ofinvestors.
(2) Maximizing uniformity in federal and state regulatorystandards.
(3) Minimizing burdens on the business of capital formation,without adversely affecting essentials of investor protection.
(c) The cooperation, coordination, consultation, and sharing ofrecords and information authorized by this section includes:
(1) establishing or employing one (1) or more designees as acentral depository for registration and notice filings under thisarticle and for records required or allowed to be maintainedunder this article;
(2) developing and maintaining uniform forms;
(3) conducting a joint examination or investigation;
(4) holding a joint administrative hearing;
(5) instituting and prosecuting a joint civil or administrativeproceeding;
(6) sharing and exchanging personnel;
(7) coordinating registrations under IC 23-19-3 andIC 23-19-4-1 through IC 23-19-4-4 and exemptions underIC 23-19-2-3;
(8) sharing and exchanging records, subject to section 7 of thischapter;
(9) formulating rules, statements of policy, guidelines, forms,and interpretative opinions and releases;
(10) formulating common systems and procedures;
(11) notifying the public of proposed rules, forms, statements ofpolicy, and guidelines;
(12) attending conferences and other meetings among securitiesregulators, which may include representatives of governmentaland private sector organizations involved in capital formation,
considered necessary or appropriate to promote or achieveuniformity; and
(13) developing and maintaining a uniform exemption fromregistration for small issuers, and taking other steps to reducethe burden of raising investment capital by small businesses.
As added by P.L.27-2007, SEC.23.
IC 23-19-6-9
Appeals from orders; transcripts; trial de novo
Sec. 9. (a) An appeal may be taken by:
(1) any issuer, investment adviser, or registered broker-dealerwhose application for registration of an issue of securities mayhave been granted or denied, from any final order of thecommissioner respecting that application or registration;
(2) any applicant for registration as a broker-dealer, investmentadviser, or agent of any registered broker-dealer, investmentadvisor, or agent, from any final order of the commissioneraffecting the application or registration as a broker-dealer,investment adviser, or agent;
(3) any person against whom a civil penalty has been imposedunder section 3(b) or 4(d) of this chapter, from the final orderof the commissioner imposing the civil penalty; or
(4) any person who is named a respondent, from any final orderissued by the commissioner under section 2, 3, or 4 of thischapter;
to the circuit or superior court of Marion County or the countywherein the person taking the appeal resides or maintains a place ofbusiness.
(b) Within twenty (20) days after the entry of the order, thecommissioner shall be served with:
(1) a written notice of the appeal stating the court to which theappeal will be taken and the grounds upon which a reversal ofthe final order is sought;
(2) a demand in writing for a certified transcript of the recordand of all papers on file in the commissioner's office affectingor relating to the order; and
(3) a bond in the penal sum of five hundred dollars ($500) to thestate of Indiana with sufficient surety to be approved by thecommissioner, conditioned upon the faithful prosecution of theappeal to final judgment and the payment of all costs that shallbe adjudged against the appellant.
(c) After the commissioner has been served with the itemsspecified in subsection (b), the commissioner shall within ten (10)days make, certify, and deliver to the appellant the transcript, and theappellant shall within five (5) days file the same and a copy of thenotice of appeal with the clerk of the court, which notice of appealshall stand as appellant's complaint, and the commissioner mayappear and file any motion or pleading and form the issue. The causeshall be entered on the trial calendar for trial de novo and givenprecedence over all matters pending in the court. (d) The court shall receive and consider any pertinent evidence,whether oral or documentary, concerning the order of thecommissioner from which the appeal is taken. If the order of thecommissioner is reversed, the court shall in its mandate specificallydirect the commissioner as to the commissioner's further action in thematter, including the making and entering of any order or orders inconnection therewith and the conditions, limitations, or restrictionsto be contained. The commissioner is not barred from revoking oraltering the order for any proper cause that may thereafter accrue orbe discovered. If the order is affirmed, the appellant is not barredafter thirty (30) days from filing a new application if the applicationis not otherwise barred or limited. The appeal shall not in any waysuspend the operation of the order appealed from during thependency of the appeal unless upon proper order of the court. Anappeal may be taken from the judgment of the court on any appeal onthe same terms and conditions as an appeal is taken in civil actions.
As added by P.L.27-2007, SEC.23.
IC 23-19-6-10
Jurisdiction
Sec. 10. (a) IC 23-19-3-1, IC 23-19-3-2, IC 23-19-4-1(a),IC 23-19-4-2(a), IC 23-19-4-3(a), IC 23-19-4-4(a), IC 23-19-5-1,IC 23-19-5-6, IC 23-19-5-9, and IC 23-19-5-10 do not apply to aperson that sells or offers to sell a security unless the offer to sell orthe sale is made in Indiana or the offer to purchase or the purchaseis made and accepted in Indiana.
(b) IC 23-19-4-1(a), IC 23-19-4-2(a), IC 23-19-4-3(a),IC 23-19-4-4(a), IC 23-19-5-1, IC 23-19-5-6, IC 23-19-5-9, andIC 23-19-5-10 do not apply to a person that purchases or offers topurchase a security unless the offer to purchase or the purchase ismade in Indiana or the offer to sell or the sale is made and acceptedin Indiana.
(c) For the purpose of this section, an offer to sell or to purchasea security is made in Indiana, whether or not either party is thenpresent in Indiana, if the offer:
(1) originates from within Indiana;
(2) is directed by the offeror to a place in Indiana and receivedat the place to which it is directed; or
(3) is directed by the offeror to a resident of Indiana.
(d) For the purpose of this section, an offer to purchase or to sellis accepted in Indiana, whether or not either party is then present inIndiana, if the acceptance:
(1) is communicated to the offeror in Indiana and the offereereasonably believes the offeror to be present in Indiana and theacceptance is received at the place in Indiana to which it isdirected or to another place in Indiana; and
(2) has not previously been communicated to the offeror, orallyor in a record, outside this state.
(e) An offer to sell or to purchase is not made in Indiana when apublisher circulates, or there is circulated on the publisher's behalf,
in Indiana a bona fide newspaper or other publication of general,regular, and paid circulation that is not published in Indiana, or thatis published in Indiana but has had more than two-thirds (2/3) of itscirculation outside Indiana during the previous twelve (12) months,or when a radio or television program or other electroniccommunication originating outside Indiana is received in Indiana. Aradio or television program or other electronic communication isconsidered as having originated in Indiana if either the broadcaststudio or the originating source of transmission is located in Indiana,unless:
(1) the program or communication is syndicated and distributedfrom outside Indiana for redistribution to the general public inIndiana;
(2) the program or communication is supplied by a radio,television, or other electronic network with the electronic signaloriginating from outside Indiana for redistribution to the generalpublic in Indiana;
(3) the program or communication is an electroniccommunication that originates outside Indiana and is capturedfor redistribution to the general public in Indiana by acommunity antenna or cable, radio, cable television, or otherelectronic system; or
(4) the program or communication consists of an electroniccommunication that originates in Indiana, but which is notintended for distribution to the general public in Indiana.
(f) IC 23-19-4-3(a), IC 23-19-4-4(a), IC 23-19-4-5(a),IC 23-19-5-2, IC 23-19-5-5, and IC 23-19-5-6 apply to a person if theperson engages in an act, practice, or course of business instrumentalin effecting prohibited or actionable conduct in this state, whether ornot either party is then present in this state.
As added by P.L.27-2007, SEC.23.
IC 23-19-6-11
Consent to service of process; conduct constituting agent forservice of process; procedures; continuances
Sec. 11. (a) An irrevocable consent to service of process requiredby this article must be signed and filed in the form required by a ruleor order under this article. A consent appointing the secretary of stateas the person's agent for service of process in an action or proceedingagainst the person, or the person's successor or personalrepresentative under this article or a rule adopted or order issuedunder this article after the consent is filed, has the same force andvalidity as if the service were made personally on the person filingthe consent. A person that has filed a consent complying with thissubsection in connection with a previous application for registrationor notice filing need not file an additional consent.
(b) If a person, including a nonresident of this state, engages in anact, practice, or course of business prohibited or made actionable bythis article or a rule adopted or order issued under this article and theperson has not filed a consent to service of process under subsection
(a), the act, practice, or course of business constitutes theappointment of the secretary of state as the person's agent for serviceof process in an action or proceeding against the person or theperson's successor or personal representative.
(c) Service under subsection (a) or (b) may be made by providinga copy of the process to the office of the secretary of state, but it isnot effective unless:
(1) the plaintiff, which may be the commissioner, promptlysends notice of the service and a copy of the process, returnreceipt requested, to the respondent at the address set forth inthe consent to service of process or, if a consent to service ofprocess has not been filed, at the last known address of therespondent, or takes other reasonable steps to give notice; and
(2) the plaintiff files an affidavit of compliance with thissubsection in the action or proceeding on or before the returnday of the process, if any, or within the time that the court, orthe commissioner in a proceeding before the commissioner,allows.
(d) Service under subsection (c) may be used in a proceedingbefore the commissioner or by the commissioner in a civil action inwhich the commissioner is the moving party.
(e) If process is served under subsection (c), the court, or thecommissioner in a proceeding before the commissioner, shall ordercontinuances as are necessary or appropriate to afford the defendantor respondent reasonable opportunity to defend.
As added by P.L.27-2007, SEC.23.
IC 23-19-6-12
Award of percentage of penalty imposed to person providinginformation
Sec. 12. The commissioner may award, from any amount imposedas a penalty under this article and recovered by the securitiesdivision, a percentage, not to exceed ten percent (10%) and asconsidered appropriate by the commissioner, of the amountrecovered, to any person who provided information leading to theimposition of the penalty. Any determination under this section,including whether to make a payment, to whom to make a payment,or in what amount to make a payment, is in the sole discretion of thecommissioner. However, a payment may not be made under thissection to an employee of the securities division. A determinationunder this section is final and is not subject to judicial review.
As added by P.L.114-2010, SEC.11.