Terms Used In Louisiana Revised Statutes 45:824

  • Bankruptcy: Refers to statutes and judicial proceedings involving persons or businesses that cannot pay their debts and seek the assistance of the court in getting a fresh start. Under the protection of the bankruptcy court, debtors may discharge their debts, perhaps by paying a portion of each debt. Bankruptcy judges preside over these proceedings.
  • Complaint: A written statement by the plaintiff stating the wrongs allegedly committed by the defendant.
  • Contract: A legal written agreement that becomes binding when signed.
  • Conviction: A judgement of guilt against a criminal defendant.
  • Corporation: A legal entity owned by the holders of shares of stock that have been issued, and that can own, receive, and transfer property, and carry on business in its own name.
  • Docket: A log containing brief entries of court proceedings.
  • Embezzlement: In most states, embezzlement is defined as theft/larceny of assets (money or property) by a person in a position of trust or responsibility over those assets. Embezzlement typically occurs in the employment and corporate settings. Source: OCC
  • Fraud: Intentional deception resulting in injury to another.
  • Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
  • Items: means any goods and services, and includes coupon books which are to be used with businesses other than the seller's business. See Louisiana Revised Statutes 45:822
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Nolo contendere: No contest-has the same effect as a plea of guilty, as far as the criminal sentence is concerned, but may not be considered as an admission of guilt for any other purpose.
  • Owner: means a person who owns or controls ten percent or more of the equity of, or otherwise has claim to ten percent or more of the net income of a telephonic seller. See Louisiana Revised Statutes 45:822
  • Partnership: A voluntary contract between two or more persons to pool some or all of their assets into a business, with the agreement that there will be a proportional sharing of profits and losses.
  • Person: includes an individual, firm, association, corporation, partnership, joint venture, or any other business entity. See Louisiana Revised Statutes 45:822
  • Personal property: All property that is not real property.
  • Plea: In a criminal case, the defendant's statement pleading "guilty" or "not guilty" in answer to the charges, a declaration made in open court.
  • Principal: means an owner, an executive officer of a corporation, a general partner of a partnership, a sole proprietor of a sole proprietorship, a trustee of a trust, or any other individual with similar supervisory functions with respect to any person. See Louisiana Revised Statutes 45:822
  • prospective purchaser: means a person who is solicited to become or does become obligated to a telephonic seller. See Louisiana Revised Statutes 45:822
  • seller: means a person who, on his or her own behalf or through salespersons, causes a telephone solicitation or attempted telephone solicitation to occur in which either the telephonic seller or the purchaser, or both, are located in Louisiana and which meets the following criteria:

    (a)  A telephone solicitation or attempted telephone solicitation wherein the telephonic seller initiates telephonic contact with a prospective purchaser and represents or implies one or more of the following:

    (i)  That a prospective purchaser who buys one or more items will also receive additional or other items, whether or not of the same type as purchased, without further cost. See Louisiana Revised Statutes 45:822

  • Service of process: The service of writs or summonses to the appropriate party.
  • Trustee: A person or institution holding and administering property in trust.

A.  Each filing pursuant to La. Rev. Stat. 45:823 shall contain the following information:

(1)  The name or names of the seller, including the name under which the seller is doing or intends to do business, if different from the name of the seller, and the name of any parent or affiliated organization that either:

(a)  Will engage in business transactions with purchasers relating to sales solicited by the seller.

(b) Accepts responsibility for statements made by, or acts of, the seller relating to sales solicited by the seller.

(2)  The seller’s business form and place of organization and, if the seller is a corporation, a copy of its articles of incorporation and bylaws and amendments thereto, or, if a partnership, a copy of the partnership agreement, or if operating under a fictitious business name, the location where the fictitious name has been registered.  All the same information shall be included for any parent or affiliated organization disclosed pursuant to Paragraph (1) of this Subsection.

(3)  The complete street address or addresses of all locations designating the principal location from which the telephonic seller will be conducting business.  If the principal business location of the seller is not in this state, then the seller shall also designate which of its locations within this state is its main location in the state.

(4)  A listing of all telephone numbers to be used by the seller and the address where each telephone using each of these telephone numbers is located.

(5)  The name of, and the office held by, the seller’s officers, directors, trustees, general and limited partners, sole proprietor, and owners, as the responsible parties in connection with the seller’s business activities.

(6)  The complete address of the principal residence, the date of birth, and the driver’s license number and state of issuance of each of the persons whose names are disclosed pursuant to Paragraph (5) of this Subsection.

(7)  The name and principal residence address of each person the telephonic seller leaves in charge at each location from which the seller does business in this state, as defined in La. Rev. Stat. 45:823(A)(1) and the business location which each of these persons is or will be in charge of.

(8)  A statement, meeting the requirements of this Paragraph, as to both the seller, whether a corporation, partnership, firm, association, joint venture, or any other type of business entity and whether identified pursuant to Paragraph (5) or (7) of this Subsection or not, and as to any person identified pursuant to Paragraph (5) or (7) who:

(a)  Has been convicted of a felony or misdemeanor involving an alleged violation of this Chapter, or fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property.  For purposes of this Subparagraph, a plea of nolo contendere shall be treated as a conviction.

(b)  Has had entered against him or her a final judgment or order in a civil or administrative action, including a stipulated judgment or order, if the complaint or petition in the civil or administrative action alleged acts constituting a violation of this Chapter, fraud, theft, embezzlement, fraudulent conversion, or misappropriation of property, the use of untrue or misleading representations in an attempt to sell or dispose of real or personal property, or the use of unfair, unlawful, or deceptive business practices.

(c)  Is subject to any currently effective injunction or restrictive court order relating to business activity as the result of an action brought by a federal, state, or local public agency or unit thereof, including but not limited to an action affecting any vocational license.

(d)  Has at any time during the previous seven tax years filed in bankruptcy, been adjudged a bankrupt, been reorganized due to insolvency, or been a principal, director, officer, trustee, general or limited partner, or had management responsibilities of any other corporation, partnership, joint venture, or business entity, that has so filed or was so adjudicated or reorganized, during or within one year after the period that the person held that position.

(e)  For purposes of Subparagraphs (a), (b), and (c), the statement required by this Paragraph shall identify the seller or person, the court or administrative agency rendering the conviction, judgment, or order, the docket number of the matter, the date of the conviction, judgment, or order, and the name of the governmental agency, if any, that brought the action resulting in the conviction, judgment, or order.  For purposes of Subparagraph (d) of this Paragraph, the statement required shall include the name and location of the seller or person filing in bankruptcy, adjudged a bankrupt, or reorganized due to insolvency, and shall include the date thereof, the court which exercised jurisdiction, and the docket number of the matter.

(9)  A list of the names and principal residence addresses of salespersons who solicit on behalf of the telephonic seller and the names the salespersons use while so soliciting.

(10)  A description of the items the seller is offering for sale and a copy of all sales scripts the telephonic seller requires salespersons to use when soliciting prospective purchasers, or if no sales script is required to be used, a statement to that effect.

(11)  A copy of all sales information and literature, including but not limited to scripts, outlines, instructions, and information regarding how to conduct telephonic sales, sample introductions, sample closing, product information, and contest or premium-award information, provided by the telephonic seller to salespersons or of which the seller informs salespersons, and a copy of all written materials the seller sends to any prospective or actual purchaser.

(12)  The name and address of the telephonic seller’s agent in this state, other than the attorney general, authorized to receive service of process in this state.

B.  If the telephonic seller represents or implies, or directs salespersons to represent or imply to purchasers that the purchaser will receive certain specific items, including a certificate of any type which the purchaser must redeem to obtain the item described in the certificate, or one or more items from among designated items, whether the items are denominated as gifts, premiums, bonuses, prizes, or otherwise, the filing shall include the following:

(1)  A list of the items offered.

(2)  The value or worth of each item described to prospective purchasers and the basis for the valuation.

(3)  The price paid by the telephonic seller to its supplier for each of these items and the name, address, and telephone number of each item’s supplier.

(4)  If the purchaser is to receive fewer than all of the items described by the seller, the filing shall include the following:

(a)  The manner in which the telephonic seller decides which item or items a particular prospective purchaser is to receive.

(b)  The odds a single prospective purchaser has of receiving each described item.

(c)  The name and address of each recipient who has, during the preceding months, or if the seller has not been in business that long, during the period the telephonic seller has been in business, received the item having the greatest value and the item with the smallest odds of being received.

(5)  All rules, regulations, terms, and conditions a prospective purchaser must meet in order to receive the item.

C.  If the telephonic seller is offering to sell any metal, stone, or mineral, the filing shall include the following:

(1)  The name, address, and telephone number of each of the seller’s suppliers and a description of each metal, stone, or mineral provided by the supplier.

(2)  If possession of any metal, stone, or mineral is to be retained by the seller or will not be transferred to the purchaser until the purchaser has paid in full, the filing shall include the following:

(a)  The address of each location where the metal, stone, or mineral will be kept.

(b)  If not kept on premises owned by the seller or at an address or addresses set forth in compliance with Subparagraph (c), the name of the owner of the business at which the metal, stone, or mineral will be kept.

(c)  A copy of any contract or other document which evidences the seller’s right to store the metal, stone, or mineral at the address or addresses designated pursuant to Subsection A.

(3)  If the seller is not selling the metal, stone, or mineral from its own inventory, but instead purchases the metal, stone, or mineral to fill orders taken from purchasers, the filing shall include copies of all contracts or other documents evidencing the seller’s ability to call upon suppliers to fill the seller’s orders.

(4)  If the seller represents to purchasers that the seller has insurance or a surety bond of any type relating to a purchaser’s purchase of any metal, stone, or mineral from the seller, the filing shall include a complete copy of all these insurance policies and bonds.

(5)  If the seller makes any representation as to the earning or profit potential of purchases of any metal, stone, or mineral, the filing shall include data to substantiate the claims made.  If the representation relates to previous sales made by the seller or a related entity, substantiating data shall be based on the experiences of at least fifty percent of the persons who have purchased the particular metal, stone, or mineral from the seller or related entity during the preceding six months, or if the seller or related entity has not been in business that long, during the period the seller or related entity has been in business, and shall include the raw data upon which the representation is based, including but not limited to all of the following:

(a)  The length of time the seller or related entity has been selling the particular metal, stone, or mineral being offered.

(b)  The number of purchasers thereof from the seller or related entity known to the seller or related entity to have made at least the same earnings or profit as those represented.

(c)  The percentage that the number disclosed pursuant to Subparagraph (b) represents the total number of purchasers from the seller or related entity of the particular metal, stone, or mineral.

D.  If the telephonic seller is offering to sell an interest in oil, gas, or mineral fields, wells, or exploration sites, the filing shall include disclosure of the following:

(1)  The seller’s ownership interest, if any, in each field, well, or site being offered for sale.

(2)  The total number of interests to be sold in each field, well, or site being offered for sale.

(3)  If, in selling an interest in any particular field, well, or site, reference is made to an investigation of these fields, wells, or sites by the seller or anyone else, the filing shall include the following:

(a)  The name, business address, telephone number, and professional credentials of the person or persons who made the investigation.

(b)  A copy of the report and other documents relating to the investigation prepared by the person or persons.

(4)  If the seller makes any representation as to the earning or profit potential of purchases of any interest in these fields, wells, or sites, the filing shall include data to substantiate the claims made.  If the representation relates to previous sales made by the seller or a related entity, the substantiating data shall be based on the experiences of at least fifty percent of the purchasers of the particular interests from the seller or the related entity during the preceding six months, or if the seller has been in business that long, during the period the seller or related entity has been in business, and shall include the raw data upon which the representation is based, including but not limited to all of the following:

(a)  The length of time the seller or related entity has been selling the particular interests in the fields, wells, or sites being offered.

(b)  The number of purchasers of the particular interest from the seller or related entity known to the seller to have made, at least the same earnings as those represented.

(c)  The percentage that the number disclosed pursuant to Subsection B represents of the total number of purchasers of the particular interests from the seller or related entity.

E.(1)  If a person, based on La. Rev. Stat. 45:822(B)(14) claims an exemption from having to file the information required by Subsections A, B, and C of this Section, the person shall file, on a form provided by the attorney general, the following information:

(a)  The name or names of the person claiming the exemption, including the name under which the person is doing or intends to do business.

(b)  The person’s business form, and place of organization, whether corporate or otherwise, or if operating under a fictitious business name, the location where the fictitious name has been registered.

(c)  The complete street address of the person’s retail locations, and telephone numbers located therein and a statement as to how long the person has been selling at retail from each location.

(d)  A copy of the person’s currently valid business license.

(e)  A statement reflecting the dollar amount of the person’s total retail sales during the twelve months preceding the filing.

(f)  A statement reflecting the dollar amount of the person’s sales made telephonically during the twelve months preceding the filing.

(2)  The filing shall be verified by a declaration signed under penalty of perjury by each principal of the person claiming the exemption.  The declaration shall specify the date and location of signing.

F.  If a person filing pursuant to Subsection E of this Section makes any representation to a prospective purchaser as to the historical movements or changes in the price or value of any coin or bullion, the person shall maintain in its records sufficient data to substantiate each representation.  This data shall be retained in the person’s records for a period of at least three years after the last date on which a representation is made and shall be made available for inspection upon request by any governmental agency at each of its business locations.

Acts 1993, No. 1003, §1.

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