Here's how that would work: Michigan's new law provides an additional
$500,000 penalty for securities violations involving investors who are
age 60 or older.
The extra penalty would be on top of a civil fine
of $10,000 for a single violation or $500,000 for multiple violations.
"The
penalties are going to be huge," said Linda Cena, Securities Director
of the Michigan Office of Financial and Insurance Regulation in Lansing.
The
extra penalty also would apply for securities violations that involve
investors deemed unable to understand the transaction due to disability
or illiteracy or an inability to understand the language of the
agreement presented to them.
Michigan's 45-year-old securities law
is changing as of today. The new act adopts a large part of the federal
Uniform Securities Act of 2002.
Some significant changes to the
Michigan securities law include:
• The definition of a "security"
is more expansive, listing several new items.
For example, the
definition of a "security" under Michigan's securities law would now
include viaticals or life settlements, as well as a financial derivative
that represents a contract sold by one party to another party. The
contract offers the buyer the right, but not the obligation, to buy (a
call) or sell (a put) a security or other financial asset at an
agreed-upon price during a certain period of time or on a specific date.
•
Michigan sellers specifically would be allowed to take action in
minority shareholder buyouts.
Under the new act, a purchaser --
say a company -- can be liable to a seller of a security for antifraud
violations. Under the old law, only sellers could have civil
liabilities, according to a report by the Michigan Bar Journal.
"This
change may allow a state law securities fraud action in minority
shareholder buyouts," according to a detailed analysis in the Michigan
Bar Journal.
How would that work?
Shane Hansen, a partner at
Warner Norcross & Judd in Grand Rapids, notes that a majority owner
in a company might try to mislead smaller or minority shareholders by
omitting or withholding information before a buyback of securities or
stock.
Let's say a company offers to buy back a stock from you,
but is not exactly being upfront.
Maybe the executives make the
buyback offer but do not disclose that the company down the road will
make a lot of money selling some real estate or landing a major contract
or getting approval on a patent.
The new Michigan statute
provides such relief for sellers who have been misled in such cases,
according to Laurence Schultz, an attorney at Driggers, Schultz &
Herbst in Troy.
• Michigan will require the registration of
"investment adviser representatives" just like almost all other states.
Cena
noted that individual investment advisers -- which includes more than
8,000 people in Michigan -- who are covered by the new Michigan law
would have until July 1, 2010, to complete the Series 65 exam. This
securities exam is required by most states for individuals who act as
investment advisers.
Under the old law, there was no such exam.
Some advisers may not have to take a new exam under some circumstances,
such as if they already have taken an exam in other states within the
last two years.
So if investment advisers give fraudulent advice,
they would be liable under the new Michigan securities law.
Peter
Rageas, a Detroit attorney who files claims against stockbrokers for
investors, said investors would be able to get more information and see
whether an individual adviser is registered. Only the firm must be
registered in Michigan now, not the individual adviser rep who is
pitching a product.
Another reason it's important that investment
advisers are now covered under the Michigan securities act is that now
investors would be able to get attorney fees included in a judgment,
Schultz said. Those fees wouldn't be covered under other claims.
•
Michigan investors also will have some more time to take action against
a bad adviser.
Investors would be able to file suit within the
earlier of two years after discovering fraud involving misstatements or
omissions in connection with investment advice or five years after the
violation occurred.
The old rule had a limit of up to four years
after the violation occurred.
Contact SUSAN TOMPOR:
313-222-8876 or stompor@freepress.com