Control Person Liability In Arizona
In Arizona, a controlling person is anyone who directly or indirectly controls another person liable under 44-1991 or -1992 of the ASA:
Every person who, directly or indirectly, controls any person liable for a violation of 44-1991 or 44-1992 is liable jointly and severally with and to the same extent as the controlled person to any person to whom the controlled person is liable unless the controlling person acted in good faith and did not directly or indirectly induce the act underlying the action. A.R.S. 44-1999(B).
"Person" includes a corporation. A.R.S. 44-1801(16).
Thus, because the Shoreys do not contest CWC's liability for violating A.R.S. 44-1991, the issue is whether the Commission's determination that Shorey controlled CWC for purposes of A.R.S. 44-1999(B) is supported by the record and in accord with Arizona law.
Section 44-1999(B) imposes "presumptive control liability on those persons who have the power to directly or indirectly control the activities of those persons or entities liable as primary violators of 44-1991." Id. at 41242, 79 P.3d at 99.
In Eastern Vanguard, we rejected the notion that to impose secondary liability under A.R.S. 44-1999(B), a "controlling person" must have actually participated in the fraudulent activity that gave rise to a violation of A.R.S. 44-1991. Id. at 411-1241, 79 P.3d at 98-99.
Instead, the evidence need only establish that the purported "controlling person had the legal power, either individually or as part of a control group, to control the activities of the primary violator." Id. at 41242, 79 P.3d at 99.