2017 ORS 59.127¹
Liability in connection with purchase or successful solicitation of purchase of securities
  • recovery by seller
  • limitations on proceeding
  • attorney fees

(1) A person is liable as provided in subsection (2) of this section to the person selling the security, if the person:

(a) Purchases or successfully solicits the purchase of a security, other than a federal covered security, in violation of any condition, limitation or restriction imposed upon a registration under the Oregon Securities Law; or

(b) Purchases or successfully solicits the purchase of a security in violation of ORS 59.135 (Fraud and deceit with respect to securities or securities business) (1) or (3) or by means of an untrue statement of a material fact or an omission to state a material fact necessary in order to make the statements made, in light of the circumstances under which they were made, not misleading (the seller not knowing of the untruth or omission), and if the person does not sustain the burden of proof that the person did not know, and in the exercise of reasonable care could not have known, of the untruth or omission.

(2) The seller may recover:

(a) Upon a tender of the consideration paid for the security, the security plus interest from the date of purchase equal to the greater of the rate of interest specified in ORS 82.010 (Legal rate of interest) for judgments for the payment of money, or the rate provided in the security if the security is an interest-bearing obligation;

(b) Damages in the amount that would be recoverable upon a tender, plus any amount received on the security, less the consideration paid for the security; or

(c) If the purchaser no longer owns the security, damages equal to the value of the security when the purchaser disposed of it plus interest on such value at the rate of interest specified in ORS 82.010 (Legal rate of interest) for judgments for the payment of money from the date of disposition, less the consideration paid for the security.

(3) Every person who directly or indirectly controls a purchaser liable under subsection (1) of this section, every partner, limited liability company manager, including a member who is a manager, officer or director of such purchaser, every person occupying a similar status or performing similar functions, and every person who participates or materially aids in the purchase is also liable jointly and severally with and to the same extent as the purchaser, unless the nonpurchaser sustains the burden of proof that the nonpurchaser did not know, and, in the exercise of reasonable care, could not have known, of the existence of facts on which the liability is based. Any person held liable under this section shall be entitled to contribution from those jointly and severally liable with the person.

(4) Notwithstanding the provisions of subsection (3) of this section, a person whose sole function in connection with the purchase of a security is to provide ministerial functions of escrow, custody or deposit services in accordance with applicable law is liable only if the person participates or materially aids in the purchase and the seller sustains the burden of proof that the person knew of the existence of facts on which liability is based or that the person’s failure to know of the existence of such facts was the result of the person’s recklessness or gross negligence.

(5) Any tender specified in this section may be made at any time before entry of judgment.

(6) Except as otherwise provided in this subsection, no action or suit may be commenced under this section more than three years after the purchase. An action under this section for a violation of subsection (1)(b) of this section or ORS 59.135 (Fraud and deceit with respect to securities or securities business) may be commenced within three years after the purchase or two years after the person bringing the action discovered or should have discovered the facts on which the action is based, whichever is later. Failure to commence an action on a timely basis is an affirmative defense.

(7) Any person having a right of action against a broker-dealer, state investment adviser or against a salesperson or investment adviser representative acting within the course and scope or apparent course and scope of the authority of the salesperson or investment adviser representative, under this section shall have a right of action under the bond or irrevocable letter of credit provided in ORS 59.175 (Procedures for notice filing and licensing).

(8) Subsection (4) of this section shall not limit the liability of any persons:

(a) For conduct other than in the circumstances described in subsection (4) of this section; or

(b) Under any other law, including any other provisions of the Oregon Securities Law.

(9) Except as provided in subsection (10) of this section, the court may award reasonable attorney fees to the prevailing party in an action under this section.

(10) The court may not award attorney fees to a prevailing defendant under the provisions of subsection (9) of this section if the action under this section is maintained as a class action pursuant to ORCP 32. [1975 c.300 §2; 1985 c.349 §14a; 1987 c.158 §11; 1987 c.603 §7; 1991 c.762 §2; 1993 c.508 §29; 1995 c.93 §28; 1995 c.696 §10; 1997 c.772 §11; 2003 c.576 §319; 2003 c.631 §2; 2003 c.786 §2]

Notes of Decisions

This sec­tion will not be applied retroactively to allow a remedy to a seller of securities in absence of any legislative intent to do so. Held v. Product Manufacturing Co., 286 Or 67, 592 P2d 1005 (1979)

For misrepresenta­tion or nondisclosure of facts in proxy state­ment to be ac­tionable, the misrepresenta­tion or nondisclosure must be ma­te­ri­al under standard specified by Supreme Court in TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438 (1976). Beebe v. Pacific Realty Trust, 578 F Supp 1128 (1984)

State­ment by directors expressed as opinion can be basis of ac­tion for ma­te­ri­al untrue or misleading state­ment of fact. Loewen v. Galligan, 130 Or App 222, 882 P2d 104 (1994)

Law Review Cita­tions

37 WLR 335 (2001)

Law Review Cita­tions

56 OLR 473 (1977); 68 OLR 228 (1989)

Chapter 59

Notes of Decisions

Public policy does not prohibit nonculpable corporate directors held liable under this chapter from seeking indemnifica­tion from per­sons actually responsible for the wrongful issuance of unregistered securities. Collins v. Fitzwa­ter, 277 Or 401, 560 P2d 1074 (1977)

Atty. Gen. Opinions

Addi­tional real estate license not re­quired where security sold is interest in limited partnership to invest in real estate, (1978) Vol 38, p 1971

1 Legislative Counsel Committee, CHAPTER 59—Securities Regulation, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors059.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 59, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano059.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.