N.Y. General Business Law § 359-g: Violations and penalties

§ 359-g. Violations and penalties. 1. (a) Any person, partnership,

corporation, company, trust or association having been served with an

order issued pursuant to the provisions of section three hundred and

fifty-four staying or enjoining any practices or transactions, or with

any order or with a final judgement in an action brought by the

attorney-general, as in this article provided, staying or enjoining any

practices or transactions, and any person, partnership, corporation,

company, trust or association having knowledge of the issuance of any

such order or judgment who, while such order or judgment is in effect,

shall disobey the same, shall be deemed in contempt of court and shall

be guilty of a misdemeanor and in addition for every violation or

attempted violation of such order or such judgment shall be liable to a

civil penalty of three thousand dollars, recoverable in an action

brought by and in the name of the people of the state of New York. Such

penalty shall be cumulative and more than one penalty shall be

recoverable in the same action in any court of competent jurisdiction.

Any person, partnership, corporation, company, trust or association who

has previously been convicted of a violation of this article, or who has

been previously convicted within the five years immediately preceding,

of any crime in this state, or any offense without the jurisdiction of

this state for which a sentence to a term of imprisonment in excess of

one year was authorized, and which crime or offense involved the

issuance, distribution, exchange, sale, negotiation or purchase of

securities or commodities, by fraud, deception, concealment,

suppression, false pretense, false promise, theft or fictitious purchase

or sale, or who has been previously found in contempt of court hereunder

under this article and who subsequently violates the provisions of this

section or any other provision of this article shall be guilty of a

Class E felony.

(b) For purposes of this section the term "security" shall be as

defined in this article or in section two of the United States

Securities Exchange Act of 1934, 15 U.S.C. § 78c and the term

"commodity" shall be as defined in this article or in section two of the

United States Commodities Exchange Act, 7 U.S.C. § 2.

(c) An appeal from an order or judgment entered under the provisions

of this article shall not operate as a stay of proceedings to enforce

such order or judgment, or suspend the injunction thereby granted unless

a justice of the supreme court, assigned to the appellate division to

which such appeal is taken, shall, upon notice to the attorney-general,

make an order granting such stay or suspending such injunction upon such

terms as he deems proper.

2. Any person, partnership, corporation, company, trust or association

violating any of the provisions of this article shall be guilty of a

misdemeanor, except where otherwise provided herein, punishable by a

fine of not more than five hundred dollars, or imprisonment for not more

than one year or both.

3. Modification or dissolution of a permanent injunction. Any person

against whom an injunction has been granted under the provisions of this

article may apply to the supreme court at any time after five years from

the date such permanent injunction became effective, upon at least sixty

days notice to the attorney-general, for an order dissolving such

injunction or modifying the same upon such terms and conditions as the

court deems necessary or desirable. Such application for dissolution or

modification of such injunction shall contain a recitation of the facts

and circumstances which caused the granting of the injunction; the

occupation and employment of the person making the application and his

financial remuneration therefrom since the time the injunction was

granted; his net worth at the time of the application and the source

thereof, together with any other facts bearing upon the reasonableness

of the application and the character of the applicant, as may enable the

court to issue an order that will properly dispose of such application

in the interests of justice. A copy of such application, together with

copies of any other papers in support thereof, shall be served upon the

attorney-general at least sixty days prior to the return date thereof.

In addition thereto the applicant shall file with the court a good and

sufficient surety bond in the sum of one thousand dollars guaranteeing

that he will pay all costs and expenses of an investigation by the

attorney-general of such applicant and the statements and claims alleged

in the application together with any further investigation which the

attorney-general may deem necessary or desirable to determine whether he

should consent to the application, oppose the same, or make such other

recommendations to the court as in his opinion are desirable to be

included in any modification of such injunction. Should it appear in the

course of such investigation by the attorney-general that said sum is

not sufficient, the attorney-general may apply to the court by usual

notice of motion or order to show cause for an increase in the amount of

security or further surety bond necessary to fully pay all of the costs

of the investigation and the court may require such further bond as the

situation requires to fully pay the costs and expenses of the

investigation. Upon the completion of such investigation, the

attorney-general may file an answer to such application setting forth

such facts as are pertinent to the determination by the court of the

matter before it and whether said injunction should be dissolved,

modified or continued in whole or in part and what conditions, if any,

shall be attached to any dissolution or modification of said injunction.

After a hearing upon such application and after any further

investigation, proof or testimony which the court may desire has been

offered, or at any adjourned dates thereof, the court may make a final

order dissolving the permanent injunction or modifying the same upon

such terms and conditions as in its opinion are just and desirable, or

in its discretion, may deny the application. Such order shall contain a

direction that the applicant pay to the attorney-general the costs and

expenses of the investigation in connection with the proceeding, and any

judgment entered thereon may be enforced directly against the surety on

the bond. The court shall grant no temporary or other relief from the

injunction in force pending a final determination of such application.

No application under this subdivision shall be entertained: (a) where

the injunction was granted as an incident to a crime of which the

applicant had been or was later convicted, nor (b) in any case where the

applicant has been convicted of a felony or a crime that would be a

felony if committed in the state of New York since the issuance of the

injunction or (c) convicted at any time of any crime involving stocks,

bonds, investments, securities, or like instruments, which are the

subject matter of this article. Nor shall anything contained in this

subdivision be construed to deny to or interfere with the power of the

attorney-general to bring any other action or proceeding, civil or

criminal, against the applicant at any time.