17-12a509.Civil liability.
(a) Securities litigation uniform standards act.
Enforcement of civil liability under this section is subject to the
securities litigation uniform standards act of 1998.
(b) Liability of seller to purchaser. A person is liable to
the purchaser if the person sells a security in violation of
K.S.A. 17-12a301, and amendments thereto, or by means of an untrue statement of
a material fact or an omission to state a material fact necessary
in order to make a 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:
(1) 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 from the
date of the purchase at the rate provided for interest on judgments by K.S.A.
16-204, and amendments thereto, costs, and reasonable attorneys' fees
determined by the court, upon the tender of the security, or for
actual damages as provided in paragraph (3).
(2) The tender referred to in paragraph (1) 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
(3).
(3) 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 from the date of the purchase
at the rate provided for interest on
judgments by K.S.A. 16-204, and amendments thereto,
costs, and
reasonable attorneys' fees determined by the court.
(c) Liability of purchaser to seller. 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:
(1) 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 (3).
(2) The tender referred to in paragraph (1) 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 (3).
(3) 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 from the date of the sale of the
security
at the rate provided for interest on
judgments by K.S.A. 16-204, and amendments thereto,
costs, and reasonable attorneys' fees determined by the
court.
(d) Liability of unregistered broker-dealer and agent. A
person acting as a broker-dealer or agent that sells or buys a
security in violation of
K.S.A. 17-12a401(a), 17-12a402(a), or
17-12a506, and
amendments thereto, is liable to the customer. The customer, if a
purchaser, may maintain an action for recovery of actual damages as specified
in subsections (b)(1) through (3), or, if a seller, for
a remedy as specified in subsections (c)(1) through (3).
(e) Liability of unregistered investment adviser and investment
adviser representative. A person acting as an investment adviser
or investment adviser representative that provides investment advice
for compensation in violation of
K.S.A. 17-12a403(a), 17-12a404(a),
or 17-12a506, and
amendments thereto, is liable to the client. The client may
maintain an action to recover the consideration paid for the advice,
interest from the date of payment
at the rate provided for interest on
judgments by K.S.A. 16-204, and amendments thereto,
costs, and
reasonable attorneys' fees determined by the court.
(f) Liability for investment advice. 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:
(1) 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
from the date of the fraudulent conduct
at the rate provided for interest on
judgments by K.S.A. 16-204, and amendments thereto,
costs, and reasonable
attorneys' fees determined by the court, less the amount of any
income received as a result of the fraudulent conduct.
(2) 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) Joint and several liability. The following persons are
liable jointly and severally with and to the same extent as persons
liable under subsections (b) through (f):
(1) A person that directly or indirectly controls a person
liable under subsections (b) through (f), 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;
(2) an individual who is a managing partner, executive officer,
or director of a person liable under subsections (b) through (f),
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;
(3) an individual who is an employee of or associated with a
person liable under subsections (b) through (f) 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
(4) 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), 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) Right of contribution. 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.
(i) Survival of cause of action. A cause of action under this
section survives the death of an individual who might have been a
plaintiff or defendant.
(j) Statute of limitations. A person may not obtain relief:
(1) Under subsection (b) for violation of
K.S.A. 17-12a301, and
amendments thereto, or under subsection (d) or (e), unless the
action is instituted within one year after the violation occurred;
or
(2) under subsection (b), other than for violation of
K.S.A. 17-12a301, and amendments thereto, or under subsection (c) or (f),
unless
the action is instituted within the earlier of two years after
discovery of the facts constituting the violation or five years
after the violation.
(k) No enforcement of violative contract. 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.
(l) No contractual waiver. 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.
(m) Survival of other rights or remedies. 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
K.S.A. 17-12a411(e), and
amendments thereto.
17-12a509.Civil liability.
(a) Securities litigation uniform standards act.
Enforcement of civil liability under this section is subject to the
securities litigation uniform standards act of 1998.
(b) Liability of seller to purchaser. A person is liable to
the purchaser if the person sells a security in violation of
K.S.A. 17-12a301, and amendments thereto, or by means of an untrue statement of
a material fact or an omission to state a material fact necessary
in order to make a 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:
(1) 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 from the
date of the purchase at the rate provided for interest on judgments by K.S.A.
16-204, and amendments thereto, costs, and reasonable attorneys' fees
determined by the court, upon the tender of the security, or for
actual damages as provided in paragraph (3).
(2) The tender referred to in paragraph (1) 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
(3).
(3) 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 from the date of the purchase
at the rate provided for interest on
judgments by K.S.A. 16-204, and amendments thereto,
costs, and
reasonable attorneys' fees determined by the court.
(c) Liability of purchaser to seller. 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:
(1) 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 (3).
(2) The tender referred to in paragraph (1) 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 (3).
(3) 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 from the date of the sale of the
security
at the rate provided for interest on
judgments by K.S.A. 16-204, and amendments thereto,
costs, and reasonable attorneys' fees determined by the
court.
(d) Liability of unregistered broker-dealer and agent. A
person acting as a broker-dealer or agent that sells or buys a
security in violation of
K.S.A. 17-12a401(a), 17-12a402(a), or
17-12a506, and
amendments thereto, is liable to the customer. The customer, if a
purchaser, may maintain an action for recovery of actual damages as specified
in subsections (b)(1) through (3), or, if a seller, for
a remedy as specified in subsections (c)(1) through (3).
(e) Liability of unregistered investment adviser and investment
adviser representative. A person acting as an investment adviser
or investment adviser representative that provides investment advice
for compensation in violation of
K.S.A. 17-12a403(a), 17-12a404(a),
or 17-12a506, and
amendments thereto, is liable to the client. The client may
maintain an action to recover the consideration paid for the advice,
interest from the date of payment
at the rate provided for interest on
judgments by K.S.A. 16-204, and amendments thereto,
costs, and
reasonable attorneys' fees determined by the court.
(f) Liability for investment advice. 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:
(1) 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
from the date of the fraudulent conduct
at the rate provided for interest on
judgments by K.S.A. 16-204, and amendments thereto,
costs, and reasonable
attorneys' fees determined by the court, less the amount of any
income received as a result of the fraudulent conduct.
(2) 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) Joint and several liability. The following persons are
liable jointly and severally with and to the same extent as persons
liable under subsections (b) through (f):
(1) A person that directly or indirectly controls a person
liable under subsections (b) through (f), 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;
(2) an individual who is a managing partner, executive officer,
or director of a person liable under subsections (b) through (f),
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;
(3) an individual who is an employee of or associated with a
person liable under subsections (b) through (f) 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
(4) 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), 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) Right of contribution. 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.
(i) Survival of cause of action. A cause of action under this
section survives the death of an individual who might have been a
plaintiff or defendant.
(j) Statute of limitations. A person may not obtain relief:
(1) Under subsection (b) for violation of
K.S.A. 17-12a301, and
amendments thereto, or under subsection (d) or (e), unless the
action is instituted within one year after the violation occurred;
or
(2) under subsection (b), other than for violation of
K.S.A. 17-12a301, and amendments thereto, or under subsection (c) or (f),
unless
the action is instituted within the earlier of two years after
discovery of the facts constituting the violation or five years
after the violation.
(k) No enforcement of violative contract. 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.
(l) No contractual waiver. 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.
(m) Survival of other rights or remedies. 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
K.S.A. 17-12a411(e), and
amendments thereto.
17-12a509.Civil liability.
(a) Securities litigation uniform standards act.
Enforcement of civil liability under this section is subject to the
securities litigation uniform standards act of 1998.
(b) Liability of seller to purchaser. A person is liable to
the purchaser if the person sells a security in violation of
K.S.A. 17-12a301, and amendments thereto, or by means of an untrue statement of
a material fact or an omission to state a material fact necessary
in order to make a 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:
(1) 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 from the
date of the purchase at the rate provided for interest on judgments by K.S.A.
16-204, and amendments thereto, costs, and reasonable attorneys' fees
determined by the court, upon the tender of the security, or for
actual damages as provided in paragraph (3).
(2) The tender referred to in paragraph (1) 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
(3).
(3) 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 from the date of the purchase
at the rate provided for interest on
judgments by K.S.A. 16-204, and amendments thereto,
costs, and
reasonable attorneys' fees determined by the court.
(c) Liability of purchaser to seller. 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:
(1) 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 (3).
(2) The tender referred to in paragraph (1) 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 (3).
(3) 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 from the date of the sale of the
security
at the rate provided for interest on
judgments by K.S.A. 16-204, and amendments thereto,
costs, and reasonable attorneys' fees determined by the
court.
(d) Liability of unregistered broker-dealer and agent. A
person acting as a broker-dealer or agent that sells or buys a
security in violation of
K.S.A. 17-12a401(a), 17-12a402(a), or
17-12a506, and
amendments thereto, is liable to the customer. The customer, if a
purchaser, may maintain an action for recovery of actual damages as specified
in subsections (b)(1) through (3), or, if a seller, for
a remedy as specified in subsections (c)(1) through (3).
(e) Liability of unregistered investment adviser and investment
adviser representative. A person acting as an investment adviser
or investment adviser representative that provides investment advice
for compensation in violation of
K.S.A. 17-12a403(a), 17-12a404(a),
or 17-12a506, and
amendments thereto, is liable to the client. The client may
maintain an action to recover the consideration paid for the advice,
interest from the date of payment
at the rate provided for interest on
judgments by K.S.A. 16-204, and amendments thereto,
costs, and
reasonable attorneys' fees determined by the court.
(f) Liability for investment advice. 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:
(1) 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
from the date of the fraudulent conduct
at the rate provided for interest on
judgments by K.S.A. 16-204, and amendments thereto,
costs, and reasonable
attorneys' fees determined by the court, less the amount of any
income received as a result of the fraudulent conduct.
(2) 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) Joint and several liability. The following persons are
liable jointly and severally with and to the same extent as persons
liable under subsections (b) through (f):
(1) A person that directly or indirectly controls a person
liable under subsections (b) through (f), 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;
(2) an individual who is a managing partner, executive officer,
or director of a person liable under subsections (b) through (f),
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;
(3) an individual who is an employee of or associated with a
person liable under subsections (b) through (f) 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
(4) 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), 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) Right of contribution. 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.
(i) Survival of cause of action. A cause of action under this
section survives the death of an individual who might have been a
plaintiff or defendant.
(j) Statute of limitations. A person may not obtain relief:
(1) Under subsection (b) for violation of
K.S.A. 17-12a301, and
amendments thereto, or under subsection (d) or (e), unless the
action is instituted within one year after the violation occurred;
or
(2) under subsection (b), other than for violation of
K.S.A. 17-12a301, and amendments thereto, or under subsection (c) or (f),
unless
the action is instituted within the earlier of two years after
discovery of the facts constituting the violation or five years
after the violation.
(k) No enforcement of violative contract. 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.
(l) No contractual waiver. 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.
(m) Survival of other rights or remedies. 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
K.S.A. 17-12a411(e), and
amendments thereto.