Liability in connection with violation of ORS 59.135; damages; defense; attorney fees; limitations on proceeding

(1) Any person who violates or materially aids in a violation of ORS 59.135 (1), (2) or (3) is liable to any purchaser or seller of the security for the actual damages caused by the violation, including the amount of any commission, fee or other remuneration paid, together with interest at the rate specified in ORS 82.010 for judgments for the payment of money, unless the person who materially aids in the violation sustains the burden of proof that the person did not know and, in the exercise of reasonable care, could not have known of the existence of the facts on which the liability is based. (2) Any person who directly or indirectly controls a person liable under subsection (1) of this section and every partner, limited liability company manager, including a member who is a manager, officer or director or a person occupying a status or performing functions of a person liable under subsection (1) of this section, is jointly and severally liable to the same extent as a person liable under subsection (1) of this section, unless the person who may be liable under this subsection sustains the burden of proof that the person did not know and, in the exercise of reasonable care, could not have known of the existence of the facts on which the liability is based. (3) Any person held liable under this section is entitled to contribution from those persons jointly and severally liable with that person. (4) Except as provided in subsection (5) of this section, the court may award reasonable attorney fees to the prevailing party in an action under this section. (5) The court may not award attorney fees to a prevailing defendant under the provisions of subsection (4) of this section if the action under this section is maintained as a class action pursuant to ORCP 32. (6) An action or suit may be commenced under this section within the later of: (a) Three years after the date of the purchase or sale of a security to which the action or suit relates; or (b) Two years after the person bringing the action or suit discovered or should have discovered the facts on which the action or suit is based. (7) Failure to commence an action or suit under this section on a timely basis is an affirmative defense.