O.C.G.A. § 10-5-59 (2019)
Exemptions to liability
A purchaser, seller, or recipient of investment advice may not maintain an action under Code Section 10-5-58 if: (1) The purchaser, seller, or recipient of investment advice receives in a record, before the action is instituted: (A) An offer stating the respect in which liability under Code Section 10-5-58 may have arisen and fairly advising the purchaser, seller, or recipient of investment advice of that person’s rights in connection with the offer and any financial or other information necessary to correct all material misrepresentations or omissions in the information that was required by this chapter to be furnished to that person at the time of the purchase, sale, or investment advice; (B) If the basis for relief may have been a violation of subsection (b) of Code Section 10-5-58, an offer to repurchase the security for cash, payable on delivery of the security, equal to the consideration paid and interest from the date of the purchase, less the amount of any income received on the security; or, if the purchaser no longer owns the security, an offer to pay the purchaser upon acceptance of the offer damages in an amount that would be recoverable upon a tender, less the value of the security when the purchaser disposed of it and interest from the
date of the purchase in cash equal to the damages computed in the manner provided in this subparagraph; (C) If the basis for relief may have been a violation of subsection (c) of Code Section 10-5-58, an offer to tender the security on payment by the seller of an amount equal to the purchase price paid, less income received on the security by the purchaser, and interest from the date of the sale; or, if the purchaser no longer owns the security, an offer to pay the seller upon acceptance of the offer, in cash, damages in the amount of the difference between the price at which the security was purchased and the value the security would have had at the time of the purchase in the absence of the purchaser’s conduct that may have caused liability and interest from the date of the sale; (D) If the basis for relief may have been a violation of subsection (d) of Code Section 10-5-58 and if the customer is a purchaser, an offer to pay as specified in subparagraph (B) of this paragraph; or, if the customer is a seller, an offer to tender or to pay as specified in subparagraph (C) of this paragraph; (E) If the basis for relief may have been a violation of subsection (e) of Code Section 10-5-58, an offer to reimburse in cash the consideration paid for the advice and interest from the date of payment; or (F) If the basis for relief may have been a violation of subsection (f) of Code Section 10-5-58, an offer to reimburse in cash the consideration paid for the advice, the amount of any actual damages that may have been caused by the conduct, and interest from the date of the violation causing the loss; (2) The offer under paragraph (1) of this Code section states that it must be accepted by the purchaser, seller, or recipient of investment advice within 30 days after the date of its receipt by the purchaser, seller, or recipient of investment advice or any shorter period, of not less than three days, that the Commissioner, by order, specifies; (3) The offeror has the present ability to pay the amount offered or to tender the security under paragraph (1) of this Code section; (4) The offer under paragraph (1) of this Code section is delivered to the purchaser, seller, or recipient of investment advice or sent in a manner that ensures receipt by the purchaser, seller, or recipient of investment advice; and (5) The purchaser, seller, or recipient of investment advice that accepts the offer under paragraph (1) of this Code section in a record within the period specified under paragraph (2) of this Code section is paid in accordance with the terms of the offer.
History
Code 1981, § 10-5-59, enacted by Ga. L. 2008, p. 381, § 1/SB 358.
ARTICLE 6 ADMINISTRATION
Annotations
Law reviews. For article, “Securities Investigations
Under the Georgia Securities Act,” see 17 Ga. St. B. J. 14 (1980).
JUDICIAL DECISIONS Editor’s notes. - In light of the similarity of the statutory provisions, decisions under former O.C.G.A. § 10-5-11, which was subsequently repealed but was succeeded by provisions in this article, are included in the annotations for this article. Privilege against incrimination. - Generally, corporate books and records cannot be insulated from reasonable demands by governmental authorities by claim of personal privilege as the privilege only applies to private property of a person claiming a privilege; thus, a corporate officer may not withhold testimony or documents on the ground that the corporation would be incriminated, nor may the custodian of corporate books or records withhold the books or records on the ground that the custodian personally might be incriminated by their production. Jacobs v. State, 157 Ga. App. 466, 278 S.E.2d 21, 1981 Ga. App. LEXIS 1870 (1981) (decided under former O.C.G.A. § 10-5-11). Custodian of corporate or association books, by accepting custodianship, voluntarily assumes duty which overrides a claim of privilege with respect to production of records themselves, but does not waive a constitutional privilege as to oral
testimony; therefore, a corporate officer who is a custodian of records may not resist production of corporate books in response to a subpoena even though such books may tend to incriminate the officer as an individual. Jacobs v. State, 157 Ga. App. 466, 278 S.E.2d 21, 1981 Ga. App. LEXIS 1870 (1981) (decided under former O.C.G.A. § 10-5-11). Custodian must produce and identify records. - Custodian of corporate records must produce records if the custodian has the records and the custodian may also be required to identify the records. Jacobs v. State, 157 Ga. App. 466, 278 S.E.2d 21, 1981 Ga. App. LEXIS 1870 (1981) (decided under former O.C.G.A. § 10-5-11). Disclosure of whereabouts of records or who has possession. - Custodian of corporate records may not be required to disclose whereabouts of such records or who has possession of the records if the custodian claims personal privilege of refusing to answer on ground that to do so would tend to incriminate the custodian. Jacobs v. State, 157 Ga. App. 466, 278 S.E.2d 21, 1981 Ga. App. LEXIS 1870 (1981) (decided under former O.C.G.A. § 10-5-11).
RESEARCH REFERENCES Am. Jur. 2d. 69A Am. Jur. 2d, Securities Regulation - State, § 79. C.J.S. 79A C.J.S., Securities Regulation and
Commodity Futures Trading Regulation, § 533.