The Florida Securities Investor Protection Act is tricky. The Statute, Fla. Stat. Ch. 517.301, relating to “Fraudulent transactions; falsification or concealment of facts” provides that:
(1) It is unlawful and a violation of the provisions of this chapter for a person:(a) In connection with the rendering of any investment advice or in connection with the offer, sale, or purchase of any investment or security, including any security exempted under the provisions of s. 517.051 and including any security sold in a transaction exempted under the provisions of s. 517.061, directly or indirectly:
a) To employ any device, scheme, or artifice to defraud;
1) To obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading; or
2) To engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon a person.
b) To publish, give publicity to, or circulate any notice, circular, advertisement, newspaper, article, letter, investment service, communication, or broadcast which, though not purporting to offer a security for sale, describes such security for a consideration received or to be received directly or indirectly from an issuer, underwriter, or dealer, or from an agent or employee of an issuer, underwriter, or dealer, without fully disclosing the receipt, whether past or prospective, of such consideration and the amount of the consideration.
Civil Penalties are provided for in Florida Statute Chapter, 517.211, and states that with respect to “Remedies available in cases of unlawful sale” that:
(1) Every sale made in violation of either s. 517.07 or s. 517.12(1), (4), (5), (9), (11), (13), (16), or (18) may be rescinded at the election of the purchaser, except a sale made in violation of the provisions of s. 517.1202(3) relating to a renewal of a branch office notification shall not be subject to this section, and a sale made in violation of the provisions of s. 517.12(13) relating to filing a change of address amendment shall not be subject to this section. Each person making the sale and every director, officer, partner, or agent of or for the seller, if the director, officer, partner, or agent has personally participated or aided in making the sale, is jointly and severally liable to the purchaser in an action for rescission, if the purchaser still owns the security, or for damages, if the purchaser has sold the security. No purchaser otherwise entitled will have the benefit of this subsection who has refused or failed, within 30 days of receipt, to accept an offer made in writing by the seller, if the purchaser has not sold the security, to take back the security in question and to refund the full amount paid by the purchaser or, if the purchaser has sold the security, to pay the purchaser an amount equal to the difference between the amount paid for the security and the amount received by the purchaser on the sale of the security, together, in either case, with interest on the full amount paid for the security by the purchaser at the legal rate, pursuant to s. 55.03, for the period from the date of payment by the purchaser to the date of repayment, less the amount of any income received by the purchaser on the security.
(2) Any person purchasing or selling a security in violation of s. 517.301, and every director, officer, partner, or agent of or for the purchaser or seller, if the director, officer, partner, or agent has personally participated or aided in making the sale or purchase, is jointly and severally liable to the person selling the security to or purchasing the security from such person in an action for rescission, if the plaintiff still owns the security, or for damages, if the plaintiff has sold the security.
(3) In an action for rescission:
(a) A purchaser may recover the consideration paid for the security or investment, plus interest thereon at the legal rate, less the amount of any income received by the purchaser on the security or investment upon tender of the security or investment.
(b) A seller may recover the security upon tender of the consideration paid for the security, plus interest at the legal rate, less the amount of any income received by the defendant on the security.
(4) In an action for damages brought by a purchaser of a security or investment, the plaintiff shall recover an amount equal to the difference between:
(a) The consideration paid for the security or investment, plus interest thereon at the legal rate from the date of purchase; and
(b) The value of the security or investment at the time it was disposed of by the plaintiff, plus the amount of any income received on the security or investment by the plaintiff.
(5) In an action for damages brought by a seller of a security, the plaintiff shall recover an amount equal to the difference between:
(a) The value of the security at the time of the complaint, plus the amount of any income received by the defendant on the security; and
(b) The consideration received for the security, plus interest at the legal rate from the date of sale.
(6) In any action brought under this section, including an appeal, the court shall award reasonable attorneys’ fees to the prevailing party unless the court finds that the award of such fees would be unjust.
However, Florida Statute Chapter, 517.211(3)(6) states the “prevailing party” shall be entitled to legal fees.
Accordingly, if you bring a 517 claim in Florida, and lose, you may be responsible for the brokerage firm’s legal fees.
In Taylor v. E.F. Hutton & Co., Inc., 40 Fla.Supp.2d 144 (Fla. 12th Cir. Ct. 1990) the Court specifically found that: “(1) § 517.211(6) Fla. Stat. gives to a trial court the discretion not to award attorney’s fees to a prevailing defendant if the trial court finds that to do so would be “unjust”; and in considering whether or not an award of attorney’s fees to a prevailing defendant would be unjust, the trial court should consider: (2) the public policies behind the statute authorizing attorneys’ fees in the case; (3) the relative economic strengths of the parties to the litigation; and (4) whether or not the claims made by the non-prevailing Plaintiff were substantially justified.
In the short title of Chapter 517 Fla. Stat., i.e., the “Florida Securities and Investor Protection Act,” the Florida Legislature expressly acknowledged the critical role that Chapter 517 plays in the preventing the exploitation of investors. See, Ch. 85-165, § 1, Laws of Fla.; § 517.011 Fla. Stat. (1985 and 1999). Judge Brownell’s opinion in Taylor v. E.F. Hutton & Co., Inc., 40 Fla.Supp.2d at 149, and the First District Court of Appeals’ opinion in Newsom v. Dean Witter Reynolds, Inc., 558 So.2d at 1077-1078 both cite Chapter 517’s investor protection public policy purpose as part their rationales for their findings that it was “unjust” to award attorney’s fees to the prevailing defendants in those cases.
Judge Brownell states: With respect to the public policies, if any, behind the statute awarding attorney’s fees, this Court finds that Chapter 517 Fla. Stat. (1987), the Florida Blue Sky Law, was enacted for the purposes of protecting the investing public and regulating the securities industry. The court finds that the statutory scheme of Chapter 517 is to encourage private citizens to bring appropriate legal actions under the statute to help advance these public policies. The court finds that frequent awards against private citizen plaintiffs would have a deterrent and chilling effect upon others who might otherwise seek to utilize the Florida securities law to advance these public policies. The court finds that this deterrent and chilling effect would particularly take place were courts to frequently award fees to prevailing securities industry defendants even in those cases where the claims of the plaintiffs, although unsuccessful, had substantial merit or were substantially justified. Taylor v. E.F. Hutton & Co., Inc., 40 Fla.Supp.2d at 149.
See also, Raymond James & Associates, Inc. v. Stanley Golin et al., No. 94-01599 Div. C (Fla. 13th Cir. Ct. June 5, 1995), aff’d per curiam, 678 So.2d 1294 (Fla. 2d DCA 1996).
In Florida, FINRA Arbitration hearings are held in Orlando, Tampa, Boca Raton, Miami, and Ft. Lauderdale
Code of Arbitration Procedure
, the FINRA Securities Arbitration hearing locations will selected based upon the hearing location closest to your residence at the time of the events giving rise to the dispute.
Additional Florida Investor Resources:
Office of Financial Regulation
200 East Gaines Street
Tallahassee, FL 32399
AboutNicholas Guiliano, Esq.
Nicholas J. Guiliano has more than 25 years of securities related experience, and has represented more than 1,000 public customers in claims against brokerage firms for fraud in connection with the sale of securities principally in arbitration before the Financial Industry Regulatory Authority (“FINRA”) Dispute Resolution, Inc. (formerly known as The National Association of Securities Dealers (“NASD”) Dispute Resolution, and the New York Stock Exchange (“NYSE”) Department of Arbitration.LEARN MORE