NEW MEXICO UNIFORM SECURITIES ACT

ARTICLE 6

Administration and Judicial Review

 

 

Section

58-13C-601   Administration.

58-13C-602   Investigations and subpoenas.

58-13C-603   Civil enforcement.

58-13C-604   Administrative enforcement.

58-13C-605   Rules, forms, orders, interpretative opinions and hearings.

58-13C-606   Administrative files and opinions.

58-13C-607   Public records; confidentiality.

58-13C-608   Uniformity and cooperation with other agencies.

58-13C-609   Judicial review.

58-13C-610   Jurisdiction.

58-13C-611   Service of process.

 

 

58-13C-601. Administration.  (2009) 

 

A.   The director shall administer the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978].  The director shall be appointed by the superintendent of regulation and licensing subject to confirmation by the senate.  The director shall be chosen solely on the basis of fitness to perform the duties of the office and shall have a minimum of five years relevant experience in the securities or finance field, relevant education and demonstrable knowledge of securities laws and regulations.  The division is under the supervision and control of the superintendent of regulation and licensing, subject, however, to the exemptions set forth in Section 9-16-11 NMSA 1978.  The director shall, with the approval of the superintendent of regulation and licensing, hire pursuant to the Personnel Act [10-9-1 NMSA 1978] and assign duties to employees necessary to assist the director in the director's duties, and the director may, with the approval of the superintendent of regulation and licensing, appoint commissioned peace officers who shall have the powers of police officers for the purpose of investigating and enforcing the provisions of the New Mexico Uniform Securities Act.  Such peace officers shall comply with the certification provisions of Section 29-7-6 NMSA 1978.

 

B.   The director may by rule impose fees as necessary for examination, claims of exemption, requests for advisory opinions and other miscellaneous filings for which no fees are specified elsewhere in the New Mexico Uniform Securities Act and may also require payment of reasonable costs of investigation resulting from enforcement actions taken pursuant to Section 602 [58-13C-602 NMSA 1978], 603 [58-13C-603 NMSA 1978] or 604 [58-13C-604 NMSA 1978] of that act.

 

C.   It is unlawful for the director or an officer, employee or designee of the director to use for personal benefit or the benefit of others records or other information obtained by or filed with the director that are not public pursuant to Subsection B of Section 607 [58-13C-607 NMSA 1978] of the New Mexico Uniform Securities Act.  The New Mexico Uniform Securities Act does not authorize the director or an officer, employee or designee of the director to disclose the record or information, except in accordance with Section 602 of that act, Subsection C of Section 607 of that act or Section 608 [58-13C-608 NMSA 1978] of that act.

 

D.   Except as stated in the New Mexico Uniform Securities Act, that act does not create or diminish a privilege or exemption that exists at common law, by statute or by rule or otherwise.

 

E.   The director may develop and implement investor education initiatives to inform the public about investing in securities, with particular emphasis on the prevention and detection of securities fraud.  In developing and implementing these initiatives, the director may collaborate with public and nonprofit organizations with an interest in investor education.  The director may accept a grant or donation to the securities enforcement and investor education fund established in Subsection F of this section from a person that is not affiliated with the securities industry or from a nonprofit organization, regardless of whether the organization is affiliated with the securities industry, to develop and implement investor education initiatives.  This subsection does not authorize the director to require participation or monetary contributions of a registrant in an investor education program.

 

F.   The "securities enforcement and investor education fund" is created as a nonreverting fund in the state treasury to provide money for the purposes specified in Subsections E and G of this section.  The division may establish and adopt rules as required to administer the fund.  The securities enforcement and investor education fund shall be administered by the division.  The fund shall consist of:

 

(1)   five dollars ($5.00) of each fee collected from registrants pursuant to Subsections B and D of Section 410 [58-13C-410 NMSA 1978] of the New Mexico Uniform Securities Act;

 

(2)   all or any portion of civil penalties, costs of investigation and other administrative assessments collected by the division through enforcement actions pursuant to the New Mexico Uniform Securities Act;

 

(3)   appropriations, grants or donations to the fund; and

 

(4)   income from investment of the fund.

 

G   Money in the securities enforcement and investor education fund shall be appropriated by the legislature to the division and shall be used for consumer education and training in matters concerning securities laws and investment issues; education and training of investigative and prosecutorial staff of the division; and costs incurred for the investigation and prosecution of civil and criminal violations of the New Mexico Uniform Securities Act, including expert and other consultant fees, witness fees, deposition costs and travel and training expenses.  Money shall be disbursed from the fund only on warrant of the secretary of finance and administration upon vouchers signed by the director or the director's authorized representative.  Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund.

 

History: Laws 2009, ch. 82, § 601.

 

58-13C-602. Investigations and subpoenas.  (2009) 

 

A.   The director may: 

 

(1)   conduct public or private investigations within or outside of New Mexico that the director considers necessary or appropriate to determine whether a person has violated, is violating or is about to violate the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978], or a rule adopted or order issued pursuant to that act, or to aid in the enforcement of the New Mexico Uniform Securities Act or in the adoption of rules and forms pursuant to that act;

 

(2)   require or permit a person to testify, file a statement or produce a record, under oath or otherwise as the director 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; and

 

(3)   publish a record concerning an action, proceeding or an investigation pursuant to or a violation of the New Mexico Uniform Securities Act or a rule adopted or order issued pursuant to that act if the director determines it is necessary or appropriate in the public interest and for the protection of investors.

 

B.   For the purpose of an investigation pursuant to the New Mexico Uniform Securities Act, the director or the director's 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 director 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 director pursuant to the New Mexico Uniform Securities Act, the director may apply to the district court of Santa Fe county or other appropriate district court or to a court of another state, a federal court or a court of a foreign jurisdiction, or the director may refer the matter to the attorney general or the proper district attorney to enforce compliance.  The court may:

 

(1)   hold the person in contempt;

 

(2)   order the person to appear before the director;

 

(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 more than ten thousand dollars ($10,000) for each violation; and

 

(7)   grant any other necessary or appropriate relief.

 

D.   This section does not preclude a person from applying to the appropriate district court or a court of another state 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 director pursuant to the New Mexico Uniform Securities Act or in an action or proceeding instituted by the director pursuant to that 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 director may apply to the district court of Santa Fe county or other appropriate district court or to a court of another state, a federal court or a court of a foreign jurisdiction 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 pursuant to such an order shall 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 director 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 director may provide the assistance by using the authority to investigate and the powers conferred by this section as the director 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 the New Mexico Uniform Securities Act or other law of New Mexico if occurring in New Mexico.  In deciding whether to provide the assistance, the director may consider whether the requesting regulator is permitted and has agreed to provide assistance reciprocally within its state or foreign jurisdiction to the director on securities matters when requested; whether compliance with the request would violate or prejudice the public policy of New Mexico; and the availability of resources and employees of the director to carry out the request for assistance.

 

History: Laws 2009, ch. 82, § 602.

 

58-13C-603. Civil enforcement.  (2009) 

 

A.   If the director believes that a person has engaged, is engaging or is about to engage in an act, practice or course of business constituting a violation of the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978] or a rule adopted or order issued pursuant to that act or that a person has, is or is about to engage in an act, practice or course of business that materially aids a violation of the New Mexico Uniform Securities Act or a rule adopted or order issued pursuant to that act, the director may maintain an action to enjoin the act, practice or course of business and to enforce compliance with the New Mexico Uniform Securities Act or a rule adopted or order issued pursuant to that act.

 

B.   In an action pursuant to this section and on a proper showing, the court may:

 

(1)   issue a permanent or temporary injunction, restraining order or declaratory judgment;

 

(2)   order other appropriate or ancillary relief, which may include:

 

(a)   an asset freeze, accounting, writ of attachment, writ of general or specific execution and appointment of a receiver or conservator, that may be the director, for the defendant or the defendant's assets;

 

(b)   ordering the director to take charge and control of a defendant's property, including investment accounts and accounts in a depository institution, rents and profits; to collect debts; and to acquire and dispose of property;

 

(c)   imposing a civil penalty of up to ten thousand dollars ($10,000) for each violation;

 

(d)   an order of rescission, restitution or disgorgement directed to a person that has engaged in an act, practice or course of business constituting a violation of the New Mexico Uniform Securities Act or the predecessor act or a rule adopted or order issued pursuant to the New Mexico Uniform Securities Act or the predecessor act;

 

(e)   ordering the payment of prejudgment and postjudgment interest; and

 

(f)   ordering the payment of litigation expenses of the director; and

 

(3)   order such other relief as the court considers appropriate.

 

C.   If a person violates a provision of the New Mexico Uniform Securities Act and the violation is directed toward, targets or is committed against a person who, at the time of the violation, is sixty-two years of age or older, the court, in addition to any other civil penalties provided for pursuant to the New Mexico Uniform Securities Act or a rule issued pursuant to that act, may impose an additional civil penalty not to exceed ten thousand dollars ($10,000) for each violation.

 

D.   The director shall not be required to post a bond in an action or proceeding pursuant to the New Mexico Uniform Securities Act.

 

History: Laws 2009, ch. 82, § 603.

 

58-13C-604. Administrative enforcement.  (2009) 

 

A.   If the director determines that a person has engaged, is engaging or is about to engage in an act, practice or course of business constituting a violation of the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978] or a rule adopted or order issued pursuant to that act or that a person has materially aided, is materially aiding or is about to materially aid an act, practice or course of business constituting a violation of the New Mexico Uniform Securities Act or a rule adopted or order issued pursuant to that act, the director may:

 

(1)    issue an order directing the person to cease and desist from engaging in the act, practice or course of business or to take other action necessary or appropriate to comply with the New Mexico Uniform Securities Act;

 

(2)    issue an order denying, suspending, revoking or conditioning the exemptions for a broker-dealer pursuant to Subparagraph (d) or (f) of Paragraph (1) of Subsection B of Section 401 [58-13B-401 NMSA 1978] [of] the New Mexico Uniform Securities Act or an investment adviser pursuant to Subparagraph (c) of Paragraph (1) of Subsection B of Section 403 [58-13B-403 NMSA 1978] of that act; or 

 

(3)   issue an order pursuant to Section 204 [58-13B-204 NMSA 1978] of the New Mexico Uniform Securities Act.

 

B.   For any administrative proceeding authorized by the New Mexico Uniform Securities Act, including proceedings related to notices and orders pursuant to Section 204 of that act, Subsection E of Section 306 [58-13C-306 NMSA 1978] of that act, Subsection F of Section 412 [58-13C-412 NMSA 1978] of that act or Subsection A of this section:

 

(1)   the director may commence an administrative proceeding by entering either a notice of intent to do a contemplated act or a summary order.  The notice of intent or summary order may be entered without notice and without opportunity for hearing and need not be supported by findings of fact or conclusions of law, but shall be in a record;

 

(2)   upon entry of a notice of intent or summary order, the director shall promptly notify in a record all parties against whom action is taken or contemplated that the notice or summary order has been entered and the reasons for the notice or summary order.  The director shall send parties against whom action is taken or contemplated a notice of opportunity for hearing on the matters set forth in the order or notice of intent.  The notice shall state that the parties have fifteen days from receipt of the notice to file with the director a request in a record for a hearing.  The director shall set the matter for hearing no more than sixty nor less than fifteen days from receipt of the request for hearing and shall promptly notify the parties of the time and place for hearing;

 

(3)   the director, whether or not a request in a record for hearing is received from any interested party, may set the matter down for hearing on the director's own motion;

 

(4)   the director may by order take the action contemplated in the notice of intent or make a summary order final:

 

(a)    fifteen days after the parties against whom action is taken or contemplated receive notice of the right to request a hearing if those parties fail to request a hearing; or

 

(b)   one day following the date set for a hearing requested by a party if the party fails to appear at the hearing;

 

(5)   if a hearing is requested or ordered, the director, after notice of the opportunity for hearing to all persons against whom action is taken or contemplated, may modify or vacate the order or extend the order until final determination;

 

(6)   for the purpose of conducting any hearing pursuant to this section, the director shall have the power to call any party to testify under oath at such hearing to require the attendance of witnesses and the production of books, records and papers and to take the depositions of witnesses; and for that purpose the director is authorized, at the request of the person requesting such hearing or upon the director's own initiative, to issue a subpoena for any witness or a subpoena duces tecum to compel the production of any books, records or papers.  At the director's option or when state law or court rules require such process, the subpoena may be directed to the sheriff or other law enforcement agency in the county where such witness resides;

 

(7)   a party entitled to a hearing pursuant to this section may appear on the party's own behalf or may be represented by an attorney.  A party has the right to present all relevant evidence and to examine all opposing witnesses who appear on any matter relevant to the issues;

 

(8)   upon making a request in a record to another party, any party is entitled to:

 

(a)   obtain the names and addresses of witnesses who will or may be called by the other party to testify at the hearing; and

 

(b)   inspect and copy any documents or items that the other party will or may introduce in evidence at the hearing;

 

(9)   the director shall pass upon the admissibility of evidence and may exclude evidence that is incompetent, irrelevant, immaterial or unduly repetitious;

 

(10)   the director may conduct the hearing, or the director may appoint a hearing officer to conduct the hearing.  A hearing officer shall have the same powers and authority in conducting a hearing as the director.  The hearing officer shall be admitted to the practice of law in this state and shall be possessed of such additional qualifications as the director may require.  The director may direct the hearing officer to submit to the director a report setting forth in a record proposed findings of fact and conclusions of law and a recommendation of the action to be taken by the director.  The director may order additional testimony to be taken or permit the introduction of further documentary evidence; and

 

(11)   a final order or order after hearing shall include entry of findings of fact and conclusions of law in a record.

 

C.   In a final order pursuant to Subsection B of this section, the director may impose a civil penalty of up to ten thousand dollars ($10,000) for each violation.  For purposes of determining the amount of a civil penalty imposed pursuant to this subsection, the director shall consider, among other factors, the frequency and persistence of the conduct constituting a violation of the New Mexico Uniform Securities Act or a rule or order of the director pursuant to that act, the number of persons adversely affected by the conduct and the resources of the person committing the violation.

 

D.   If a person violates a provision of the New Mexico Uniform Securities Act and the violation is directed toward, targets or is committed against a person who, at the time of the violation, is sixty-two years of age or older, the director, in addition to any other administrative penalties provided for pursuant to the New Mexico Uniform Securities Act or a rule issued pursuant to that act, may impose an additional administrative penalty not to exceed ten thousand dollars ($10,000) for each violation.

 

E.   In a final order, the director may charge the actual cost of an investigation or proceeding for a violation of the New Mexico Uniform Securities Act or a rule adopted or order issued pursuant to that act.

 

F.   If a petition for judicial review of a final order is not filed in accordance with Section 609 [58-13C-609 NMSA 1978] of the New Mexico Uniform Securities Act, the director may file a certified copy of the final order with the clerk of the appropriate district court.  The order so filed has the same effect as a judgment of the court and may be recorded, enforced or satisfied in the same manner as a judgment of the court.

 

G.   If a person does not comply with an order pursuant to this section, the director may petition the district court of Santa Fe county or other appropriate district court or a court of another state, a federal court or a court of a foreign jurisdiction to enforce the order.  The court shall not require the director to post a bond in an action or proceeding pursuant to this section.  If the court finds, after service and opportunity for hearing, that the person was not in compliance with the order, the court may adjudge the person in civil contempt of the order.  The court may impose a further civil penalty against the person for contempt in an amount not greater than ten thousand dollars ($10,000) for each violation and may grant any other relief the court determines is just and proper in the circumstances.

 

History: Laws 2009, ch. 82, § 604.

 

58-13C-605. Rules, forms, orders, interpretative opinions and hearings.  (2009) 

 

A.   The director may:

 

(1)   issue forms and orders and, after notice and comment, may adopt and amend rules necessary or appropriate to carry out the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978] and may repeal rules, including rules and forms governing registration statements, applications, notice filings, reports and other records;

 

(2)   by rule, define terms, whether or not used in the New Mexico Uniform Securities Act, but those definitions shall not be inconsistent with that act; and

 

(3)   by rule, classify securities, persons and transactions and adopt different requirements for different classes.

 

B.   Pursuant to the New Mexico Uniform Securities Act, a rule or form shall not be adopted or amended, or an order issued or amended, unless the director finds that the rule, form, order or amendment is necessary or appropriate in the public interest or for the protection of investors and is consistent with the purposes intended by the New Mexico Uniform Securities Act.  In adopting a rule, the director may use the director's own experience, technical competence, specialized knowledge and judgment.  In adopting, amending and repealing rules and forms, Section 608 [58-13C-608 NMSA 1978] of the New Mexico Uniform Securities Act applies in order to achieve uniformity among the states and coordination with federal laws in the form and content of registration statements, applications, reports and other records, including the adoption of uniform rules, forms and procedures.

 

C.   Subject to Section 15(h) of the federal Securities Exchange Act and Section 222 of the federal Investment Advisers Act of 1940, the director may require that a financial statement filed pursuant to the New Mexico Uniform Securities Act be prepared in accordance with generally accepted accounting principles in the United States and comply with other requirements specified by rule adopted or order issued pursuant to the New Mexico Uniform Securities Act.  A rule adopted or order issued pursuant to the New Mexico Uniform Securities Act may establish:

 

(1)   subject to Section 15(h) of the federal Securities Exchange Act and Section 222 of the federal Investment Advisors Act of 1940, the form and content of financial statements required pursuant to the New Mexico Uniform Securities Act;

 

(2)   whether unconsolidated financial statements shall be filed; and

 

(3)   whether required financial statements shall be audited by an independent certified public accountant.

 

D.   The director may provide interpretative opinions or issue determinations that the director will not institute a proceeding or an action pursuant to the New Mexico Uniform Securities Act against a specified person for engaging in a specified act, practice or course of business if the determination is consistent with that act.  A rule adopted or order issued pursuant to the New Mexico Uniform Securities Act may establish a reasonable charge for interpretative opinions or determinations that the director will not institute an action or a proceeding.

 

E.   A civil or administrative penalty pursuant to the New Mexico Uniform Securities Act shall not be imposed for, and liability does not arise from, conduct that is engaged in or omitted in good faith believing that conduct conforms to a rule, form or order of the director pursuant to the New Mexico Uniform Securities Act.

 

F.   A hearing in an administrative proceeding pursuant to the New Mexico Uniform Securities Act shall be conducted in public unless the director for good cause consistent with that act determines that the hearing will not be so conducted.

 

History: Laws 2009, ch. 82, § 605.

 

58-13C-606. Administrative files and opinions.  (2009) 

 

A.   The director shall maintain, or designate a person to maintain, a register of applications for registration of securities; registration statements; notice filings; applications for registration of broker-dealers, agents, investment advisers and investment adviser representatives; notice filings by federal covered investment advisers that are or have been effective pursuant to the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978] or the predecessor act; notices of claims of exemption from registration or notice filing requirements contained in a record; orders issued pursuant to the New Mexico Uniform Securities Act or the predecessor act; and interpretative opinions or no action determinations issued pursuant to the New Mexico Uniform Securities Act.

 

B.   The director shall make all rules, forms, interpretative opinions and orders available to the public.

 

C.   The director shall furnish a copy of a record that is a public record or a certification that the public record does not exist to a person that so requests.  A rule adopted pursuant to the New Mexico Uniform Securities Act may establish a reasonable charge for furnishing the record or certification.  A copy of the record certified or a certificate by the director of a record's nonexistence is prima facie evidence of a record or its nonexistence.

 

History: Laws 2009, ch. 82, § 606.

 

58-13C-607. Public records; confidentiality.  (2009) 

 

A.   Except as otherwise provided in Subsection B of this section, records obtained by the director or filed pursuant to the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978], including a record contained in or filed with a registration statement, application, notice filing or report, are public records and are available for public examination.

 

B.   The following records are not public records and are not available for public examination pursuant to Subsection A of this section:

 

(1)   a record obtained by the director in connection with an audit or inspection pursuant to  Subsection D of Section 411 [58-13C-411 NMSA 1978] of the New Mexico Uniform Securities Act or an investigation pursuant to Section 602 [58-13C-602 NMSA 1978] of that act, except that information that is introduced at a hearing constitutes public information unless otherwise ordered by the director;

 

(2)   a part of a record filed in connection with a registration statement pursuant to Sections 301 [58-13C-301 NMSA 1978] and 303 [58-13C-303 NMSA 1978] through 305 [58-13C-305 NMSA 1978] of the New Mexico Uniform Securities Act or a record pursuant to Subsection D of Section 411 of that act that contains trade secrets or confidential information if the person filing the registration statement or report has asserted a claim of confidentiality or privilege that is authorized by law;

 

(3)   a record that is not required to be provided to the director or filed pursuant to the New Mexico Uniform Securities Act and is provided to the director only on the condition that the record will not be subject to public examination or disclosure;

 

(4)   a nonpublic record received from a person specified in Subsection A of Section 608 [58-13C-608 NMSA 1978] of the New Mexico Uniform Securities Act; and

 

(5)  any social security number, residential address unless used as a business address and residential telephone number unless used as a business telephone number contained in a record that is filed.

 

C.   If disclosure is for the purpose of a civil, administrative or criminal investigation, action or proceeding or to a person specified in Subsection A of Section 608 of the New Mexico Uniform Securities Act, the director may disclose a record obtained in connection with an audit or inspection pursuant to Subsection D of Section 411 of that act or a record obtained in connection with an investigation pursuant to Section 602 [58-13C-602 NMSA 1978] of that act.

 

History: Laws 2009, ch. 82, § 607.

 

58-13C-608. Uniformity and cooperation with other agencies.  (2009) 

 

A.   The director may, in the director's discretion, cooperate, coordinate, consult and, subject to Section 607 [58-13C-607 NMSA 1978] of the New Mexico Uniform Securities Act, share records and information with the securities regulator of another state, Canada, a Canadian province or territory, a foreign jurisdiction, the securities and exchange commission, the United States department of justice, the commodity futures trading commission, the federal trade commission, the securities investor protection corporation, a self-regulatory organization, a national or international organization of securities regulators, a federal or state banking and insurance regulator and a governmental law enforcement agency to effectuate greater uniformity in securities matters among the federal government, self-regulatory organizations, states and foreign governments.

 

B.   In cooperating, coordinating, consulting and sharing records and information pursuant to this section and in acting by rule, order or waiver pursuant to the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978], the director shall, in the director's discretion, take into consideration in carrying out the public interest the following general policies:

 

(1)   maximizing effectiveness of regulation for the protection of investors;

 

(2)   maximizing uniformity in federal and state regulatory standards; and

 

(3)   minimizing burdens on the business of capital formation, without adversely affecting essentials of investor protection.

 

C.   The cooperation, coordination, consultation and sharing of records and information authorized by this section includes:

 

(1)    establishing or employing one or more designees as a central depository for registration and notice filings pursuant to the New Mexico Uniform Securities Act and for records required or allowed to be maintained pursuant to that act;

 

(2)   developing and maintaining uniform forms;

 

(3)   conducting a joint examination or investigation;

 

(4)   holding a joint administrative hearing;

 

(5)   instituting and prosecuting a joint civil or administrative proceeding;

 

(6)   sharing and exchanging personnel;

 

(7)   coordinating registrations pursuant to Sections 301 [58-13C-301 NMSA 1978] and 401 [58-13C-401 NMSA 1978] through 404 [58-13C-404 NMSA 1978] of the New Mexico Uniform Securities Act and exemptions pursuant to Section 203 [58-13C-203 NMSA 1978] of that act;

 

(8)   sharing and exchanging records, subject to Section 607 [58-13C-607 NMSA 1978] of the New Mexico Uniform Securities Act;

 

(9)   formulating rules, statements of policy, guidelines, forms and interpretative opinions and releases;

 

(10)   formulating common systems and procedures;

 

(11)   notifying the public of proposed rules, forms, statements of policy and guidelines;

 

(12)   attending conferences and other meetings among securities regulators, which may include representatives of governmental and private sector organizations involved in capital formation, deemed necessary or appropriate to promote or achieve uniformity; and

 

(13)   developing and maintaining a uniform exemption from registration for small issuers and taking other steps to reduce the burden of raising investment capital by small businesses.

 

History: Laws 2009, ch. 82, § 608.

 

58-13C-609. Judicial review.  (2009) 

 

A.   A final order issued by the director pursuant to the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978] is subject to judicial review in accordance with the provisions of Section 39-3-1.1 NMSA 1978.

 

B.   The filing of an appeal pursuant to Subsection A of this section does not, unless specifically ordered by the court, operate as a stay of the director's order or rule, and the director may enforce or ask the court to enforce the order pending the outcome of the review proceedings. 

 

History: Laws 2009, ch. 82, § 609.

 

58-13C-610. Jurisdiction.  (2009) 

 

A.   Sections 301 [58-13C-301 NMSA 1978] and 302 [58-13C-302 NMSA 1978] of the New Mexico Uniform Securities Act, Subsection A of Section 401 [58-13C-401 NMSA 1978] of that act, Subsection A of Section 402 [58-13C-402 NMSA 1978] of that act, Subsection A of Section 403 [58-13C-403 NMSA 1978] of that act, Subsection A of Section 404 [58-13C-404 NMSA 1978] of that act and Sections 501 [58-13C-501 NMSA 1978], 506 [58-13C-506 NMSA 1978], 509 [58-13C-509 NMSA 1978] and 510 [58-13C-510 NMSA 1978] of that act do not apply to a person that sells or offers to sell a security, unless the offer to sell or the sale is made in New Mexico or the offer to purchase or the purchase is made and accepted in New Mexico.

 

B.   Subsection A of Section 401 of the New Mexico Uniform Securities Act, Subsection A of Section 402 of that act, Subsection A of Section 403 of that act, Subsection A of Section 404 of that act and Sections 501, 506, 509 and 510 of that act do not apply to a person that purchases or offers to purchase a security, unless the offer to purchase or the purchase is made in New Mexico or the offer to sell or the sale is made and accepted in New Mexico.

 

C.   For the purpose of this section, an offer to sell or to purchase a security is made in New Mexico, whether or not either party is then present in New Mexico, if the offer:

 

(1)   originates from within New Mexico; or

 

(2)   is directed by the offeror to a place in New Mexico and received at the place to which it is directed.

 

D.   For the purpose of this section, an offer to purchase or to sell is accepted in New Mexico, whether or not either party is then present in New Mexico, if the acceptance:

 

(1)   is communicated to the offeror in New Mexico and the offeree reasonably believes the offeror to be present in New Mexico and the acceptance is received at the place in New Mexico to which it is directed; and

 

(2)   has not previously been communicated to the offeror, orally or in a record, outside New Mexico.

 

E.   An offer to sell or to purchase is not made in New Mexico when a publisher circulates or there is circulated on the publisher's behalf in New Mexico a bona fide newspaper or other publication of general, regular and paid circulation that is not published in New Mexico, or that is published in New Mexico but has had more than two-thirds of its circulation outside New Mexico during the previous twelve months or when a radio or television program or other electronic communication, except specifically addressed electronic mail or messaging, originating outside New Mexico is received in New Mexico.  A radio or television program or other electronic communication is considered as having originated in New Mexico if either the broadcast studio or the originating source of transmission is located in New Mexico, unless:

 

(1)   the program or communication is syndicated and distributed from outside New Mexico for redistribution to the general public in New Mexico;

 

(2)   the program or communication is supplied by a radio, television or other electronic network with the electronic signal originating from outside New Mexico for redistribution to the general public in New Mexico;

 

(3)   the program or communication is an electronic communication that originates outside New Mexico and is captured for redistribution to the general public in New Mexico by a community antenna or cable, radio, cable television or other electronic system; or

 

(4)   the program or communication consists of an electronic communication that originates in New Mexico, but that is not intended for distribution to the general public in New Mexico.

 

F.   Subsection A of Section 403 of the New Mexico Uniform Securities Act, Subsection A of Section 404 of that act, Subsection A of Section 405 [58-13C-405 NMSA 1978] of that act and Sections 502 [58-13C-502 NMSA 1978], 505 [58-13C-505 NMSA 1978] and 506 [58-13C-506 NMSA 1978] of that act apply to a person if the person engages in an act, practice or course of business instrumental in effecting prohibited or actionable conduct in New Mexico, whether or not either party is then present in New Mexico.

 

History: Laws 2009, ch. 82, § 610.

 

58-13C-611. Service of process.  (2009) 

 

A.   A consent to service of process complying with this section shall be signed and filed in the form required by a rule or order pursuant to the New Mexico Uniform Securities Act [58-13C-101 NMSA 1978].  A consent appointing the director as the person's agent for service of process in a noncriminal action or proceeding against the person, or the person's successor or personal representative pursuant to the New Mexico Uniform Securities Act or a rule adopted or order issued pursuant to that act after the consent is filed, has the same force and validity as if the service were made personally on the person filing the consent.  A person that has filed a consent complying with this subsection in connection with a previous application for registration or notice filing need not file an additional consent.

 

B.   If a person, including a nonresident of New Mexico, engages in an act, practice or course of business prohibited or made actionable by the New Mexico Uniform Securities Act or a rule adopted or order issued pursuant to that act and the person has not filed a consent to service of process pursuant to Subsection A of this section, the act, practice or course of business constitutes the appointment of the director as the person's agent for service of process in a noncriminal action or proceeding against the person or the person's successor or personal representative.

 

C.   Service pursuant to Subsection A or B of this section may be made by providing a copy of the process to the office of the director, but it is not effective unless: 

 

(1)   the plaintiff, which may be the director, promptly sends notice of the service and a copy of the process, return receipt requested, to the defendant or respondent at the address set forth in the consent to service of process or, if a consent to service of process has not been filed, at the last known address, or takes other reasonable steps to give notice; and 

 

(2)   the plaintiff files an affidavit of compliance with this subsection in the action or proceeding on or before the return day of the process, if any, or within the time that the court, or the director in a proceeding before the director, allows.

 

D.   Service pursuant to Subsection C of this section may be used in a proceeding before the director or by the director in a civil action in which the director is the moving party.

 

E.   If process is served pursuant to Subsection C of this section, the court, or the director in a proceeding before the director, shall order continuances as are necessary or appropriate to afford the defendant or respondent reasonable opportunity to defend.

 

History: Laws 2009, ch. 82, § 611.