Amendment #359 to H4789

Fair Investment Practices Relative to Sexual Harassment

Ms. Nguyen of Andover moves to amend the bill by adding the following sections:

Section XXXX. The General Laws are hereby amended by inserting after Chapter 151F the following chapter:-

Chapter 151G. FAIR INVESTMENT PRACTICES.

Section 1. As used in this chapter, the following words shall have the following meanings unless the context clearly requires otherwise:

“Commission”, the Massachusetts commission against discrimination, established by section 56 of chapter 6.

“Derivative investment”, an acquisition of securities by a venture capital company in the ordinary course of its business in exchange for an existing venture capital investment either (i) upon the exercise or conversion of the existing venture capital investment or (ii) in connection with a public offering of securities or the merger or reorganization of the operating company to which the existing venture capital investment relates.

“Professional investor”, one or more persons, including but not limited to, a bank, bank holding company, savings institution, trust company, insurance company, investment company registered under the Federal Investment Company Act of 1940, pension or profit-sharing trust or other financial institution or institutional buyer, licensee under the Federal Small Business Investment Act of 1958, partnership, association, corporation, legal representative, trustee, trustee in bankruptcy, receiver, and venture capital fund, whose business includes sponsoring, guaranteeing or granting funds or engaging in investment transactions.

“Venture capital company”, an entity that satisfies one or more of the conditions below: (A) on at least one occasion during the annual period commencing with the date of its initial capitalization, and on at least one occasion during each annual period thereafter, at least 50 per cent of its assets (other than short-term investments pending long-term commitment or distribution to investors), valued at cost, are venture capital investments or derivative investments; or (B) the entity is a “venture capital fund” as defined in rule 203(l)-1 adopted by the Securities and Exchange Commission under the Investment Advisers Act of 1940, as amended (17 C.F.R. 275.203 (l)-(1)); or (C) the entity is a “venture capital operating company” as defined in rule 2510.3-101(d) adopted by the U.S. Department of Labor under the Employee Retirement Income Security Act of 1974 (29 C.F.R. § 2510.3-101(d)).

“Venture capital fund”, shall have the same meaning as defined in rule 203(l)-1 adopted by the Securities and Exchange Commission under the Investment Advisers Act of 1940, as amended (17 C.F.R. 275.203 (l)-(1)).

“Venture capital investment”, an acquisition of securities in an operating company as to which the investment adviser, the entity advised by the investment adviser, or an affiliated person of either has or obtains management rights.

Section 2. It shall be unlawful for a professional investor doing business in the commonwealth to make sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature either directly or indirectly through an intermediary when: (i) submission to or rejection of such advances, requests or conduct is made explicitly or implicitly a basis for business investment transactions, including the sponsoring, guaranteeing or granting of funds; or (ii) such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s working relationship with a person, business, partnership, or other entity or venture by creating an intimidating, hostile, humiliating or sexually offensive environment, relationship, partnership or other situation; provided, that discrimination on the basis of sex shall include, but not be limited to, sexual harassment.

Section 3. (a) An individual doing business in the commonwealth who is injured by a violation of subsections (a) or (b) of section 2, or any business, partnership or other venture or entity doing or planning to do business in the commonwealth, which employed the individual as its agent to conduct its business with the professional investor during the course of the injuring actions, may bring an action in any court of competent jurisdiction against  a professional investor who commits an unlawful act under section 2. A professional investor shall be liable to the individual, entity or venture bringing suit for damages, including, but not limited to, compensatory, incidental, consequential and punitive damages. A plaintiff may also seek, and the court may grant, injunctive and other appropriate equitable relief. The court shall, in addition to any judgment awarded to the plaintiff, award reasonable attorneys’ fees to be paid by the defendant and the costs of the action.

(b) The attorney general may bring enforcement action against a professional investor for violations of section 2. A professional investor subject to such action shall be liable for damages, including, but not limited to, compensatory, incidental, consequential and punitive damages. The attorney general may also seek and the court may grant, injunctive and other appropriate equitable relief. A violation may be proven by demonstrating disparate impact, disparate treatment or any other appropriate means. The court shall, in addition to any judgment awarded, award reasonable attorneys’ fees to be paid by the defendant and the costs of the action. Costs and attorneys’ fees shall be paid to the commonwealth and damages shall be paid to the individual, venture or entity injured due to the violation of section 2. Prior to or in connection with bringing an enforcement action, the attorney general’s office shall be permitted to investigate potential violations with the powers granted by, and in a manner consistent with, section 6 of chapter 93A of the General Laws.

(c) Any action based upon or arising under this chapter shall be instituted within 3 years after the date of the last alleged unlawful act, the last alleged injury, when an injured individual became aware of the last alleged injury or when the attorney general’s office became aware of the last alleged injury, whichever is most recent.             

Section 4. This chapter shall be construed liberally to accomplish its purposes. Nothing contained in this chapter shall be deemed to repeal any provision of any other law of this commonwealth.

SECTION XXXX. Notwithstanding any general or special law to the contrary, the attorney general, in consultation with the commission  and the secretary of state, shall publish compliance guidelines, as required by section 4 of chapter 151G of the General Laws, not later than 1 year after the effective date of this act.

Additional co-sponsor(s) added to Amendment #359 to H4789

Fair Investment Practices Relative to Sexual Harassment