Section 409.6-602

Title XXVI TRADE AND COMMERCE

Chapter 409

Effective - 01 Sep 2003, see footnote   

  409.6-602.  Investigations and subpoenas. — (a)  The commissioner may:

  (1)  Conduct public or private investigations within or outside of this state which the commissioner considers necessary or appropriate to determine whether a person has violated, is violating, or is about to violate this act or a rule adopted or order issued under this act, or to aid in the enforcement of this act or in the adoption of rules and forms under this act;

  (2)  Require or permit a person to testify, file a statement, or produce a record, under oath or otherwise as the commissioner determines, as to all the facts and circumstances concerning a matter to be investigated or about which an action or proceeding is to be instituted;

  (3)  Publish a record concerning an action, proceeding, or an investigation under, or a violation of, this act or a rule adopted or order issued under this act if the commissioner determines it is necessary or appropriate in the public interest and for the protection of investors; and

  (4)  Appoint special investigators to aid in investigations conducted pursuant to this act.  Under such appointment by the commissioner, special investigators who meet the qualifications of a law enforcement officer pursuant to chapter 590 shall have the authority as peace officers to serve subpoenas and all other process, and while investigating criminal violations of this act to participate in the making of arrests and the application for search warrants.  Such special investigators shall coordinate arrests and seizure of evidence with other state or federal law enforcement officers.

  (b)  For the purpose of an investigation under this act, the commissioner or its designated officer may administer oaths and affirmations, subpoena witnesses, seek compulsion of attendance, take evidence, require the filing of statements, and require the production of any records that the commissioner considers relevant or material to the investigation.

  (c)  If a person does not appear or refuses to testify, file a statement, produce records, or otherwise does not obey a subpoena as required by the commissioner under this act, the commissioner may apply to the circuit court of any county of the state or any city not within a county, or a court of another state to enforce compliance.  The court may:

  (1)  Hold the person in contempt;

  (2)  Order the person to appear before the commissioner;

  (3)  Order the person to testify about the matter under investigation or in question;

  (4)  Order the production of records;

  (5)  Grant injunctive relief, including restricting or prohibiting the offer or sale of securities or the providing of investment advice;

  (6)  Impose a civil penalty of not less than ten thousand dollars and not greater than fifty thousand dollars for each violation; and

  (7)  Grant any other necessary or appropriate relief.

  (d)  This section does not preclude a person from applying to the circuit court of any county of the state or any city not within a county for relief from a request to appear, testify, file a statement, produce records, or obey a subpoena.

  (e)  An individual is not excused from attending, testifying, filing a statement, producing a record or other evidence, or obeying a subpoena of the commissioner under this act or in an action or proceeding instituted by the commissioner under this act on the grounds that the required testimony, statement, record, or other evidence, directly or indirectly, may tend to incriminate the individual or subject the individual to a criminal fine, penalty, or forfeiture.  If the individual refuses to testify, file a statement, or produce a record or other evidence on the basis of the individual's privilege against self-incrimination, the commissioner may apply to the circuit court of any county of the state or any city not within a county to compel the testimony, the filing of the statement, the production of the record, or the giving of other evidence.  The testimony, record, or other evidence compelled under such an order may not be used, directly or indirectly, against the individual in a criminal case, except in a prosecution for perjury or contempt or otherwise failing to comply with the order.

  (f)  At the request of the securities regulator of another state or a foreign jurisdiction, the commissioner may provide assistance if the requesting regulator states that it is conducting an investigation to determine whether a person has violated, is violating, or is about to violate a law or rule of the other state or foreign jurisdiction relating to securities matters that the requesting regulator administers or enforces.  The commissioner may provide the assistance by using the authority to investigate and the powers conferred by this section as the commissioner determines is necessary or appropriate.  The assistance may be provided without regard to whether the conduct described in the request would also constitute a violation of this act or other law of this state if occurring in this state.  In deciding whether to provide the assistance, the commissioner may consider whether the requesting regulator is permitted and has agreed to provide assistance reciprocally within its state or foreign jurisdiction to the commissioner on securities matters when requested; whether compliance with the request would violate or prejudice the public policy of this state; and the availability of resources and employees of the commissioner to carry out the request for assistance.

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(L. 2003 H.B. 380)

Effective 9-01-03