Whenever it appears to the director that a person has engaged, is engaging, or is about to engage in an act or practice constituting a violation of this chapter or a rule or order under this chapter, in addition to specific powers granted in this chapter:
Terms Used In Utah Code 61-1-20
Assets: (1) The property comprising the estate of a deceased person, or (2) the property in a trust account.
Broker-dealer: means a person engaged in the business of effecting transactions in securities for the account of others or for the person's own account. See Utah Code 61-1-13
Defendant: In a civil suit, the person complained against; in a criminal case, the person accused of the crime.
Director: means the director of the division appointed in accordance with Section 61-1-18. See Utah Code 61-1-13
Division: means the Division of Securities established by Section 61-1-18. See Utah Code 61-1-13
Injunction: An order of the court prohibiting (or compelling) the performance of a specific act to prevent irreparable damage or injury.
Investment adviser: includes a financial planner or other person who:
(A)
as an integral component of other financially related services, provides the investment advisory services described in Subsection (1)(q)(i) to others as part of a business;
(B)
holds the person out as providing the investment advisory services described in Subsection (1)(q)(i) to others; or
(C)
holds the person out as a financial adviser, financial consultant, or any other similar title as the division may specify in rule made in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, in any way as to imply that the person is generally engaged in an investment advisory business, including a person who does not hold a securities license and uses a title described in this Subsection (1)(q)(ii)(C) in any advertising or marketing material. See Utah Code 61-1-13
Person: means :
(i)
an individual;
(ii)
a corporation;
(iii)
a partnership;
(iv)
a limited liability company;
(v)
an association;
(vi)
a joint-stock company;
(vii)
a joint venture;
(viii)
a trust where the interests of the beneficiaries are evidenced by a security;
Rescission: The cancellation of budget authority previously provided by Congress. The Impoundment Control Act of 1974 specifies that the President may propose to Congress that funds be rescinded. If both Houses have not approved a rescission proposal (by passing legislation) within 45 days of continuous session, any funds being withheld must be made available for obligation.
Restitution: The court-ordered payment of money by the defendant to the victim for damages caused by the criminal action.
State: means a state, territory, or possession of the United States, the District of Columbia, and Puerto Rico. See Utah Code 61-1-13
Undue influence: means that a person uses a relationship or position of authority, trust, or confidence:
(i)
that is unrelated to a relationship created:
(A)
in the ordinary course of making investments regulated under this chapter; or
(B)
by a licensee providing services under this chapter;
(ii)
that results in:
(A)
an investor perceiving the person as having heightened credibility, personal trustworthiness, or dependability; or
(B)
the person having special access to or control of an investor's financial resources, information, or circumstances; and
(iii)
to:
(A)
exploit the trust, dependence, or fear of the investor;
(B)
knowingly assist or cause another to exploit the trust, dependence, or fear of the investor; or
(C)
gain control deceptively over the decision making of the investor. See Utah Code 61-1-13
the director may issue an order directing the person to appear before the commission and show cause why an order should not be issued directing the person to cease and desist from engaging in the act or practice, or doing an act in furtherance of the activity;
(b)
the order to show cause shall state the reasons for the order and the date of the hearing;
(c)
the director shall promptly serve a copy of the order to show cause upon a person named in the order;
(d)
the commission shall hold a hearing on the order to show cause no sooner than 10 business days after the order is issued;
(e)
after a hearing, the commission may:
(i)
issue an order to cease and desist from engaging in an act or practice constituting a violation of this chapter or a rule or order under this chapter;
(ii)
impose a fine in an amount determined after considering the factors set forth in Section 61-1-31;
(iii)
order disgorgement;
(iv)
order restitution;
(v)
order rescission;
(vi)
bar or suspend that person from associating with a licensed broker-dealer or investment adviser in this state; and
(vii)
impose a combination of sanctions in this Subsection (1)(e).
(2)
(a)
The director may bring an action in the appropriate district court of this state or the appropriate court of another state to enjoin an act or practice and to enforce compliance with this chapter or a rule or order under this chapter.
(b)
Upon a proper showing in an action brought under this section, the court may:
(i)
issue a permanent or temporary, prohibitory or mandatory injunction;
(ii)
issue a restraining order or writ of mandamus;
(iii)
enter a declaratory judgment;
(iv)
appoint a receiver or conservator for the defendant or the defendant’s assets;
(v)
order disgorgement;
(vi)
order rescission;
(vii)
order restitution;
(viii)
impose a fine in an amount determined after considering the factors set forth in Section 61-1-31; and
(ix)
enter any other relief the court considers just.
(c)
The court may not require the division to post a bond in an action brought under this Subsection (2).
(3)
An order issued under Subsection (1) shall be accompanied by written findings of fact and conclusions of law.
(4)
When determining the severity of a sanction to be imposed under this section, the commission or court shall consider whether:
(a)
the person against whom the sanction is to be imposed exercised undue influence; or
(b)
the person against whom the sanction is imposed under this section knows or should know that an investor in the investment that is the grounds for the sanction is a vulnerable adult.
