Effective 28 Aug 2019

127.040. Violations — civil investigation, procedure - failure to comply or violations, procedure. — 1. When it appears to the attorney general that a person has violated any provision of this chapter or when he or she believes it to be in the public interest that an investigation should be made to ascertain whether a person in fact has violated this chapter, he or she may execute in writing and cause to be served upon any person who is believed to have information, documentary material, or physical evidence relevant to the alleged or suspected violation, a civil investigative demand requiring such person to appear and testify, or to produce relevant documentary material or physical evidence or examination, at such reasonable time and place as may be stated in the civil investigative demand. Service of any civil investigative demand, notice, or subpoena may be made by any person authorized by law to serve process or by any duly authorized employee of the attorney general.

2. Each civil investigative demand shall:

(1) State the statute and section thereof, the alleged violation of which is under investigation, and the general subject matter of the investigation;

(2) Describe the class or classes of information, documentary material, or physical evidence to be produced thereunder with reasonable specificity so as fairly to indicate the material demanded;

(3) Prescribe a return date by which the information, documentary material, or physical evidence is to be produced; and

(4) Identify the members of the attorney general's staff to whom the information, documentary material, or physical evidence requested is to be made available.

3. No civil investigative demand shall:

(1) Contain any requirement that would be unreasonable or improper if contained in a subpoena duces tecum issued by a court of this state; or

(2) Require the disclosure of any documentary material that would be privileged or that, for any other reason, could not be required by a subpoena duces tecum issued by a court of this state.

4. Service of any civil investigative demand, notice, or subpoena may be made by:

(1) Delivering a duly executed copy thereof to the person to be served, or to a partner or any officer or agent authorized by appointment or by law to receive service of process on behalf of such person;

(2) Delivering a duly executed copy thereof to the principal place of business or the residence in this state of the person to be served;

(3) Mailing by registered or certified mail a duly executed copy thereof, addressed to the person to be served, at the principal place of business or the residence in this state or, if such person has no place of business or residence in this state, to his or her principal office or place of business or his or her residence; or

(4) The mailing thereof by registered or certified mail, requesting a return receipt signed by the addressee only, to the last known place of business, residence, or abode within or without this state of such person for whom the same is intended.

5. Documentary material, information, or physical evidence demanded pursuant to the provisions of this section shall be produced during normal business hours at the principal office or place of business of the person served, or at such other times and places as may be agreed upon by the person served and the attorney general.

6. A person upon whom a civil investigative demand is served pursuant to this section shall comply with the terms thereof unless otherwise provided by an order of a court. Any person who, with intent to avoid, evade, or prevent compliance, in whole or in part, with any civil investigative demand issued pursuant to this section, removes from any place, conceals, withholds, or destroys, mutilates, alters, or by any other means falsifies any information, documentary material, or physical evidence in the possession, custody, or control of any person, that is the subject of any such civil investigative demand shall be guilty of a class A misdemeanor. The attorney general shall have original jurisdiction to enforce the provisions of this section.

7. (1) Whenever any person fails to comply with any civil investigative demand duly served upon him or her pursuant to this section or whenever satisfactory copying or reproduction of any such material cannot be done and such person refuses to surrender such material, the attorney general, through such officers or attorneys as he or she may designate, may file, in the trial court of general jurisdiction of a county or judicial district in which such person resides, is found, or transacts business, and serve upon such person a petition for an order of such court for the enforcement of such civil investigative demand.

(2) Notwithstanding subdivision (1) of this subsection to the contrary, if a person transacts business in more than one county or judicial district, a petition shall be filed in the county or judicial district in which such person maintains his or her principal place of business, or in such other county or judicial district as may be agreed upon by the parties to such petition.

(3) Whenever any petition is filed in the trial court of general jurisdiction of a county or judicial district pursuant to this section, such court shall have jurisdiction to hear and determine the matter so presented, and to enter such order or orders as may be required to carry into effect the provisions of this chapter. Any final order so entered shall be subject to appeal to the supreme court. Any disobedience of any final order entered pursuant to this section by any court shall be punished as contempt.

8. (1) Whenever it appears to the attorney general that a person has violated, is violating, or is about to violate any provision of this chapter, he or she may issue and cause to be served upon such person, and any other person or persons concerned with or who, in any way, have participated, are participating, or are about to participate in such violation, an order prohibiting such person or persons from engaging or continuing to engage in such unlawful act.

(2) Prior to issuing an order pursuant to subdivision (1) of this subsection, the attorney general shall notify each person who will be subject to such order of:

(a) The statutory section which such person is alleged to have violated, be in the process of violating, or be about to violate; and

(b) The nature of the alleged violation.

(3) The person to whom such notice is given shall have two business days from the receipt of such notice to file an answer to such notice with the attorney general before the order authorized by this subsection may be issued.

9. All orders issued by the attorney general pursuant to subsection 8 of this section shall be signed by the attorney general or, in his or her absence, a duly authorized representative, and shall be served in the manner provided in subsection 4 of this section and shall expire of their own force ten days after being served.

10. Any person who has been duly served with an order issued pursuant to subsection 8 of this section and who willfully and knowingly violates any provision of such order while such order remains in effect, either as originally issued or as modified, shall be guilty of a class E felony. The attorney general shall have original jurisdiction to commence all criminal actions necessary to enforce this section.

11. (1) Whenever it appears to the attorney general that a person has engaged in, is engaging in, or is about to engage in any act prohibited by this chapter, the attorney general may seek and obtain, in an action in a circuit court, an injunction prohibiting such person from continuing such act, or engaging therein, or doing anything in furtherance thereof.

(2) In any action under subsection 1 of this section, and pursuant to the provisions of the Missouri Rules of Civil Procedure, the attorney general may seek and obtain temporary restraining orders, preliminary injunctions, temporary receivers, and the sequestering of any funds or accounts if the court finds that funds or property may be hidden or removed from the state or that such orders or injunctions are otherwise necessary.

(3) If the court finds that the person has engaged in, is engaging in, or is about to engage in any act prohibited by this chapter, it may make such orders or judgments as may be necessary to prevent such person from employing or continuing to employ, or to prevent the recurrence of, any acts prohibited by this chapter.

(4) The court, in its discretion, may appoint a receiver to ensure the conformance to any orders issued pursuant to subsection 3 of this section.

(5) The court may award to the state a civil penalty of not more than one thousand dollars per violation, provided that if the person who would be liable for such penalty shows, by a preponderance of the evidence, that a violation resulted from a bona fide error notwithstanding the maintenance of procedures reasonably adopted to avoid the error, no civil penalties shall be imposed.

(6) Any action pursuant to this subsection may be brought in the county in which the defendant resides, in which the violation alleged to have been committed occurred, or in which the defendant has his or her principal place of business.

(7) The attorney general may enter into consent judgments or consent injunctions with or without admissions of violations of this chapter. Violation of any such consent judgment or consent injunction shall be subject to a civil penalty of not more than five thousand dollars per violation, to be paid to the state.

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(L. 2019 S.B. 213)