PJC Business

F RAUD AND N EGLIGENT M ISREPRESENTATION

PJC 105.16

PJC 105.16 Question on Violation of Texas Securities Act—Control Person Liability If you answered “Yes” to Question ______ [ 105.12 ], then answer the follow ing question. Otherwise, do not answer the following question. QUESTION ______ Did Deborah Dennis directly or indirectly control Don Davis ? Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 105.16 submits liability under Tex. Gov’t Code §4008.055(a) (formerly Tex. Rev. Civ. Stat. art. 581–33F), which provides that “a person who directly or indirectly controls a seller, buyer, or issuer of a security is liable under Sec tion 4008.051, 4008.052, 4008.053, 4008.054 jointly and severally with the seller, buyer, or issuer and to the same extent as the seller, buyer, or issuer.” Tex. Gov’t Code §4008.055(b) provides a defense if “the controlling person sustains the burden of proof that the controlling person did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist.” See PJC 105.17. The two questions are submitted separately. Importance of statutory language. Because PJC 105.16 and 105.17 submit a statutory liability and defense, they track the statutory language of Tex. Gov’t Code §4008.055 as required by the Texas Supreme Court. Regal Finance Co., Ltd v. Tex Star Motors, Inc. , 355 S.W.3d 595, 601 (Tex. 2010) (UCC liability) (“[A] jury charge submitting liability under a statute should track the statutory language as closely as possible.”) (citing Spencer v. Eagle Star Insurance Co. of America , 876 S.W.2d 154, 157 (Tex. 1994) (Insurance Code liability); Brown v. American Transfer & Storage Co. , 601 S.W.2d 931, 937 (Tex. 1980) (DTPA liability)). Broad-form submission. PJC 105.16 is a broad-form question designed to be accompanied by one or more appropriate instructions. Tex. R. Civ. P. 277 requires that “the court shall, whenever feasible, submit the cause upon broad-form questions.” Tex. R. Civ. P. 277; see Thota v. Young , 366 S.W.3d 678, 689 (Tex. 2012) (rule 277’s use of “whenever feasible” mandates broad-form submission in any or every instance in which it is capable of being accomplished). Instruction on “control.” The Securities Act does not define “control person” or “control.” The State Securities Board rules do not define “control person,” but the

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