Appeal of Advent Med. Prods., Inc.

NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well
as formal revision before publication in the New Hampshire Reports. Readers
are requested to notify the Reporter, Supreme Court of New Hampshire, One
Charles Doe Drive, Concord, New Hampshire 03301, of any editorial errors in
order that corrections may be made before the opinion goes to press. Errors
may be reported by email at the following address: reporter@courts.state.nh.us.
Opinions are available on the Internet by 9:00 a.m. on the morning of their
release. The direct address of the court’s home page is:
https://www.courts.nh.gov/our-courts/supreme-court.

THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Bureau of Securities Regulation
Case No. 2024-0720
Citation: Appeal of Advent Med. Prods., Inc., 2026 N.H. 30

APPEAL OF ADVENT MEDICAL PRODUCTS, INC. & a.
(New Hampshire Bureau of Securities Regulation)

Argued: April 7, 2026
Opinion Issued: July 31, 2026

John M. Formella, attorney general, and Anthony J. Galdieri, solicitor
general (James H. Holl, attorney, on the brief and orally), for the New
Hampshire Bureau of Securities Regulation.

Orr & Reno, P.A., of Concord (Lisa Snow Wade and Meredith Farrell
Goldstein on the brief, and Lisa Snow Wade orally), for Advent Medical
Products, Inc. and Randall Finke.

Cleveland, Waters and Bass, P.A., of Concord (Jeffrey C. Christensen on
the brief), and Dylan White, of Washington, D.C., associate general counsel, on
the brief, for North American Securities Administrators Association, Inc., as
amicus curiae.

2
DONOVAN, J.

¶1 Advent Medical Products, Inc. (Advent) and Randall Fincke (Fincke),
the respondents in the underlying administrative proceeding, appeal orders of
the director of the New Hampshire Bureau of Securities Regulation (Bureau)
holding them liable for violations of RSA chapter 421-B, New Hampshire’s
Uniform Securities Act (Act), in connection with securities sales to thirteen
investors. See RSA 421-B:3, I(b) (Supp. 2015) (repealed and reenacted 2015);
RSA 421-B:11, I (2006) (repealed and reenacted 2015); RSA 421-B:1-101
(2022); RSA 421-B:5-501(a)(2) (2022).1 Following a hearing, the director
ordered the respondents to pay monetary penalties, rescind the challenged
securities sales, and permanently cease and desist from offering or selling
securities in New Hampshire. We affirm in part, reverse in part, vacate in part,
and remand.

I. Facts

¶2 The director found, or the record otherwise supports, the following
facts. Fincke founded Advent in 2004 to develop and manufacture manual
defibrillators and automatic external defibrillators (AEDs). Advent is
headquartered in Massachusetts, where Fincke resided at all relevant times.

¶3 Before marketing a defibrillator, a manufacturer must seek clearance
from the United States Food and Drug Administration (FDA) under the
applicable regulatory process. Accordingly, in 2010, Advent secured clearance
for various products under the FDA’s 510(k) process.

¶4 The company thereafter began soliciting investors. From around
2012 to 2017, Fincke’s brother, Gary Fincke, led these efforts in New
Hampshire. A New Hampshire resident, Gary often worked from his home
office. He met with several investors in person and corresponded with others
by phone and email. Apart from one investor who said he could not recall the
exact instruments he signed, the investors who testified at the hearing before
the director each bought three securities: a promissory note, a call option, and
a put option. Although Advent sold several securities in New Hampshire, the
company did not register them with the Bureau as generally required under the
Act. See RSA 421-B:11, I.

¶5 Meanwhile, Advent suffered a spate of delays in selling its products.
First, in February 2015, the FDA began mandating that AEDs receive clearance

1 In 2015, the legislature renumbered and reenacted the Act’s provisions. Nevertheless, “[t]he
predecessor act exclusively governs all actions or proceedings that . . . may be instituted on the
basis of conduct occurring before the effective date of” the 2015 revision. RSA 421-B:7-701(a)
(2022). Because the respondents sold securities before and after the Act’s revision, this case
implicates provisions in both its predecessor and current versions.

3
under its more stringent Premarket Approval (PMA) process, rather than the
previously applicable 510(k) process. Although Advent remained able to sell its
non-AED products, the FDA’s mandate required the company to receive PMA
clearance before selling any AEDs. As of the hearing in August 2024, Advent
had completed a preliminary submission in the PMA process but had yet to
obtain FDA approval for its AEDs.

¶6 Separately, in late 2016, Fincke discovered a defect in the
defibrillators’ lithium-ion batteries, which took him two years to resolve. A
securities enforcement proceeding against Advent in Massachusetts and the
COVID-19 pandemic further stalled the company’s product development.

¶7 In 2023, the Bureau filed a staff petition for relief alleging that the
respondents had violated the Act and listing thirteen investors whose
purchases of Advent securities the Bureau sought to rescind.2 Specifically, the
Bureau’s petition claimed that between October 2010 and April 2016, the
respondents unlawfully sold unregistered securities and misrepresented
material facts to investors.

¶8 The respondents requested a hearing and later moved to dismiss.
After a four-day administrative hearing, the Bureau’s director issued a final
order denying the respondents’ motion to dismiss and determining that they
illegally sold unregistered securities and made misrepresentations to investors.
The director ordered the respondents, jointly and severally, to: (1) pay a
$345,000 fine for 138 violations of the Act; (2) rescind the challenged
investments, which totaled $480,000; (3) pay $60,000 to the Bureau for
investigative and enforcement costs; and (4) cease and desist from violating the
Act.

¶9 The Bureau moved to reconsider the “cease and desist” portion of the
director’s order. The director granted the Bureau’s motion, ordering the
respondents to permanently cease and desist from offering or selling securities
in New Hampshire. The respondents then moved to reconsider both the
director’s final order and his subsequent order granting the Bureau’s motion.
The director denied the respondents’ motion to reconsider. This appeal
followed.

II. Analysis

¶10 In an administrative hearing before a presiding officer of the
Bureau, the officer’s “decisions shall be reached upon the basis of a
preponderance of the evidence.” RSA 421-B:6-613(v) (2022). Meanwhile, RSA
541:13 (2021) sets forth our standard of review of the officer’s decision. See

2 Three of the thirteen investors listed in the Bureau’s petition are couples who invested jointly in
Advent while married. The petition treats each of these couples as a single “investor.”

4
Appeal of Town of Salem, 168 N.H. 572, 580 (2016); RSA 421-B:6-609 (2022)
(providing that agency’s “[f]inal orders . . . under this chapter are subject to
judicial review in accordance with RSA 541”). We will not set aside or vacate
the presiding officer’s decision “except for errors of law, unless [we are]
satisfied, by a clear preponderance of the evidence before [us], that such order
is unjust or unreasonable.” RSA 541:13. “The presiding officer’s findings of
fact are deemed prima facie lawful and reasonable.” Appeal of Town of Salem,
168 N.H. at 580; see RSA 541:13.

¶11 Resolving the respondents’ appeal requires us to construe various
provisions of the Act. “Statutory interpretation is a question of law, which we
review de novo.” Appeal of Town of Salem, 168 N.H. at 577. “We first look to
the language of the statute itself, and, if possible, construe that language
according to its plain and ordinary meaning.” Boucher v. Town of
Moultonborough, 176 N.H. 271, 274 (2023); RSA 21:2 (2020). “We give effect to
every word of a statute whenever possible and will not consider what the
legislature might have said or add language that the legislature did not see fit
to include.” Boucher, 176 N.H. at 274. “We also construe all parts of a statute
together to effectuate its overall purpose and avoid an absurd or unjust result.”
Id. “However, we do not construe statutes in isolation; instead, we attempt to
construe them in harmony with the overall statutory scheme.” Id.

A. Misrepresentations

¶12 We first address the respondents’ challenge to the director’s
determination that they unlawfully misrepresented material facts while
soliciting investments. The director found that the respondents
misrepresented facts by: (1) not divulging to any investors that Fincke was
found liable in two lawsuits for stealing trade secrets and committing securities
fraud, respectively; and (2) telling three investors that Advent’s defibrillators
were close to going to market. See RSA 421-B:3, I(b); RSA 421-B:5-501(a)(2).

¶13 The respondents’ alleged misrepresentations occurred before and
after the legislature’s revision of the Act in 2015. The operative provisions in
the current and predecessor Acts, RSA 421-B:5-501(a)(2) and RSA 421-B:3,
I(b), are nearly identical and do not differ substantively. Therefore, for ease of
reference, we cite only to the current provision, RSA 421-B:5-501(a)(2). This
provision states:

It is unlawful for a person, in connection with the offer, sale, or
purchase of a security, directly or indirectly, to: . . . (2) make an
untrue statement of a material fact or to omit to state a material fact
necessary in order to make the statement made, in the light of the
circumstances under which they were made, not misleading . . . .

RSA 421-B:5-501(a) (2022).

5
i. Fincke’s Prior Litigation

¶14 The director found that the respondents’ failure to disclose two
lawsuits involving Fincke rendered materially misleading the information they
did give investors regarding “Fincke’s biography and history in the defibrillation
market.” On appeal, the respondents assert that their nondisclosure did not
make the professional history they supplied to investors “misleading.”

¶15 RSA 421-B:3, I(b) and RSA 421-B:5-501(a)(2) duplicate the text of
Securities and Exchange Commission (SEC) Rule 10b-5(b). Compare RSA 421-
B:3, I(b), and RSA 421-B:5-501(a)(2), with 17 C.F.R. § 240.10b-5(b). As such,
federal courts’ construction of Rule 10b-5(b) can be instructive.3 The United
States Supreme Court has clarified that Rule 10b-5(b)’s language proscribing
omissions of material fact requires only “disclosure of information necessary to
ensure that statements already made are clear and complete.” Macquarie
Infrastructure Corp. v. Moab Partners, L. P., 601 U.S. 257, 264 (2024). “This
Rule therefore covers half-truths, not pure omissions.” Id.

¶16 Half-truths penalizable under Rule 10b-5(b) “are representations
that state the truth only so far as it goes, while omitting critical qualifying
information.” Id. at 263 (quotation omitted). In short, “once a company speaks
on an issue or topic, it must tell the whole truth.” Gimpel v. The Hain Celestial
Group, Inc., 156 F.4th 121, 139 (2d Cir. 2025) (quotations omitted), petition for
cert. filed (U.S. May 1, 2026) (No. 25-1255). However, “[w]hen making a
voluntary disclosure, a company that reveals one fact is not required to reveal
all others that, too, would be interesting, market-wise; instead, it is required
only to reveal the facts necessary to make the existing statement not so
incomplete as to mislead.” Zhou v. Desktop Metal, Inc., 120 F.4th 278, 294
(1st Cir. 2024) (quotations omitted). “To render a statement misleading, the
omission must be within the scope of the disclosure.” Id. at 296 (quotation
omitted). Further, “a statement cannot be misleading when the words spoken
and the facts omitted operate on different levels of generality.” Newtyn
Partners v. Alliance Data Systems Corp., 165 F.4th 947, 963 (6th Cir. 2026)
(quotation omitted).

¶17 In the first lawsuit at issue, Fincke’s former employer, Zoll Medical
Corporation (Zoll), sued Fincke and a company he founded, Cadent Medical
Corporation (Cadent). A jury found in 2000 that Fincke stole Zoll’s trade
secrets. Because Fincke had separately sued Zoll, the parties settled their
dispute after trial. In the second matter, a bankruptcy court ruled in 2009

3 See Quest Medical, Inc. v. Apprill, 90 F.3d 1080, 1091 n.16 (5th Cir. 1996) (explaining that
“Texas courts look to decisions of the federal courts to aid in the interpretation of” state securities
law); State v. Bates, No. 2019-0396 (non-precedential order at 5), 2020 WL 6779377 (N.H. Nov.
18, 2020) (“rely[ing] upon federal law in determining whether the State presented sufficient
evidence to prove that the defendant’s untrue statements were material” in appeal of securities
fraud conviction under Act).

6
that Fincke illegally made a false statement of material fact while soliciting
investors for another company he founded, Access Cardiosystems (Access). In
re Access Cardiosystems, Inc., 404 B.R. 593, 666 (Bankr. D. Mass. 2009), aff’d,
488 B.R. 1 (D. Mass. 2012), aff’d, 776 F.3d 30 (1st Cir. 2015).

¶18 Meanwhile, the only information provided to investors that the
director’s final order cites is a one-paragraph biography of Fincke that
investors received together with other materials about Advent. The paragraph
notes Fincke’s “over 25 years of marketing and technology management
experience in the medical device industry, including several patents,” and
includes three sentences in total addressing his work for Zoll, Cadent, and
Access.

¶19 The Bureau and amicus curiae posit that because this biography
“touted” Fincke’s experience developing medical devices, the respondents told
“half-truths” by failing to divulge the lawsuits, which were connected to this
experience. However, the biography’s overview of Fincke’s decades-long career
is markedly more general than any facts that would have been disclosed
regarding the lawsuits. See Newtyn Partners, 165 F.4th at 963. Further,
although the paragraph mentions Zoll, Cadent, and Access, the results of
corporate lawsuits do not fall “within the scope of” the one-paragraph
biography. Zhou, 120 F.4th at 296. Indeed, an investor would not typically
expect a cursory professional summary to comprehensively recount past legal
disputes. See Barilli v. Sky Solar Holdings, Ltd., 389 F. Supp. 3d 232, 251-52
(S.D.N.Y. 2019) (explaining that company’s statements about founder’s
previous projects did not “affirmatively represent[] that [he] did not engage in
past improper transactions . . . , nor would the statements lead a reasonable
investor to conclude as much,” and rejecting argument that company had to
disclose adverse legal judgments against him).

¶20 Finally, the cases cited by the Bureau and amicus curiae finding
liability for “omissions of prior legal, regulatory, and similar troubles” are
inapposite. For instance, in Securities and Exchange Commission v.
Westhead, a corporate principal’s undisclosed, pending state enforcement
actions bore directly on the accuracy of the company’s alleged statements to
investors that its “offerings comply with the securities laws” and that its
investor memoranda contained all relevant information. S.E.C. v. Westhead, 733 F. Supp. 3d 1284, 1299 (S.D. Fla. 2024). Meanwhile, the court in United
States Securities and Exchange Commission v. Melton penalized an executive’s
nondisclosure of “his securities disciplinary history” to his financial advisees
under Rule 10b-5’s other prongs, by which liability can attach for “an omission
of material fact by a party with a duty to disclose” it. U.S. Sec. & Exch. Comm.
v. Melton, No. 1:23-CV-434, 2025 WL 1135180, at *4 (M.D.N.C. Apr. 17, 2025).
In contrast, RSA 421-B:3, I (Supp. 2015) (repealed and reenacted 2015) and
RSA 421-B:5-501(a) lack language penalizing omissions on the basis of a
preexisting duty.

7
[¶21] We therefore agree with the respondents that because their
nondisclosure of the lawsuits did not render the biography “so incomplete as to
mislead,” Zhou, 120 F.4th at 294, it was a permissible “pure omission,”
Macquarie Infrastructure Corp., 601 U.S. at 264. The director thus erred by
levying penalties for the respondents’ failure to disclose information relating to
the lawsuits. See RSA 421-B:3, I(b); RSA 421-B:5-501(a)(2).

ii. Time to Enter Market

¶22 The director also ruled that the respondents made “an untrue
statement of material fact” by telling investors D.I., S.M., and K.K. that Advent
was close to selling its defibrillators. See RSA 421-B:3, I(b); RSA 421-B:5-
501(a)(2). The director found these statements to be false because, when the
respondents made them in 2015 and early 2016, Advent had yet to apply for
PMA clearance — which the FDA had begun requiring for AEDs in early 2015.
On appeal, the respondents argue that they told the truth, as their comments
pertained to Advent’s defibrillators generally, not solely its AEDs. They
maintain that despite the company’s later, unforeseen delays, its non-AED
products — which remained FDA-compliant — were close to entering the
market in 2015 and early 2016.

¶23 Again, we draw guidance from federal courts’ analysis of the nearly
identical text of SEC Rule 10b-5(b). Multiple courts have noted that a
“violation of . . . Rule 10b-5 premised on misstatements cannot occur unless
an alleged material misstatement was false at the time it was made.” Gluck v.
Hecla Min. Co., 657 F. Supp. 3d 471, 488 (S.D.N.Y. 2023) (emphasis added);
see Shushany v. Allwaste, Inc., 992 F.2d 517, 524 (5th Cir. 1993) (“Statements
that are predictive in nature are actionable only if they were false when made.”
(emphasis added)). “The truth (or falsity) of defendants’ statements, and their
materiality, must be assessed at the time the statements are made, and not in
the light of hindsight.” Pommer v. Medtest Corp., 961 F.2d 620, 625 (7th Cir.
1992). Thus, a “statement believed to be true when made, but later shown to
be false, is insufficient.” Gluck, 657 F. Supp. 3d at 489.

¶24 Additionally, we have previously construed the phrase “untrue
statement of a material fact” as it appears in RSA 356-B:65, I (2022), which
proscribes such statements made when selling an interest in a condominium.
Thompson v. The H.W.G. Group, 139 N.H. 698, 699-700 (1995). In doing so,
we explained that although “a promise can imply a statement of material fact
about the promisor’s intention and capacity to honor the promise,” such a
promise “will only give rise to a claim of misrepresentation if, at the time it was
made, the defendant had no intention to fulfill the promise.” Id. at 700-01
(emphasis added).

¶25 As explained below, we hold that the director unreasonably
concluded that the respondents made false representations about the timeline

8
for marketing their defibrillators. See RSA 541:13. We first note that the
director found, consistent with the record, that the FDA’s adoption of a
heightened PMA clearance requirement for AEDs did not alter Advent’s
previously secured 510(k) clearance for its manual defibrillators. Neither
Fincke’s nor the three investors’ testimony supports the Bureau’s contention
that, in 2015 and 2016, the respondents were soliciting funds specifically for
Advent’s AEDs. Rather, Fincke testified that the respondents told investors
they wanted to sell their AEDs as well as other products. He also stated that
from 2015 to early 2016, it was accurate to represent that Advent’s products
were close to going to market. Fincke further discussed, at length, Advent’s
work developing both its manual and automatic devices around this period.

¶26 All three investors testified in line with Fincke’s claim that Advent’s
representations regarding its progress concerned its “product line” generally,
not only its AEDs. Indeed, none of the investors mentioned AEDs.
For example, D.I. stated only that before his final investment on January 16,
2015, “the argument that was made [by the respondents] was, you know, we’re
on the cusp of getting this out there, and we just need an additional push at
this point to move us forward and to get to market.” S.M. similarly testified
that on one occasion in December 2015, Gary “indicated that they were . . . in
the latter stages of product development. . . . [T]hey were, like, nearing
production.” S.M. added: “[T]o be clear, he didn’t give a timeline, but it wasn’t
at its infancy.” Finally, upon being asked what the respondents were “saying
about the marketability and commercialization” when he invested in April
2016, K.K. testified merely that he was told something to the effect of, “Just,
you know, it looks good. That’s all.”

¶27 Because the three investors did not mention hearing specifically
about AEDs, the FDA’s PMA requirement does not alone render the
respondents’ representations about time to market “false when made.”4
Shushany, 992 F.2d at 524. The director did not make any other findings, nor
has the Bureau proffered any evidence, suggesting that in 2015 and early
2016, the respondents expected their products to face delays or did not intend
to sell them quickly. See Thompson, 139 N.H. at 701; Gluck, 657 F. Supp. 3d
at 489. To the contrary, the record demonstrates that delays first occurred in
late 2016.

¶28 As the record does not indicate any circumstance existing in 2015
or early 2016 that made the respondents’ comments an “untrue statement of a
material fact,” the director’s imposition of liability for the respondents’

4 Further, given that D.I. made his final investment on January 16, 2015, any relevant
representation to him that Advent was “on the cusp” of selling its products would have preceded
the FDA’s definitive announcement of the new PMA requirement for AEDs. See Effective Date of
Requirement for Premarket Approval for Automated External Defibrillator Systems; Republication,
80 Fed. Reg. 5674, 5683 (Feb. 3, 2015) (codified at 21 C.F.R. pt. 870) (stating that FDA published
final order promulgating rule on January 29, 2015).

9
representations that their products were close to market was unreasonable.
RSA 421-B:3, I(b); see RSA 421-B:5-501(a)(2). Because we reverse the finding
of liability under RSA 421-B:3, I(b) and RSA 421-B:5-501(a)(2), we need not
reach the respondents’ argument that these two provisions are
unconstitutionally vague. Nor need we address their claim that the Bureau’s
penalty for K.K.’s investment violated the Act’s jurisdictional provisions and the
dormant Commerce Clause of the United States Constitution.

B. Registration

¶29 Next, the respondents challenge the director’s determination that
they unlawfully failed to register various securities sold in New Hampshire
before the current Act became effective. Under RSA 421-B:11, I, “[i]t is
unlawful for any person to offer or sell any security in this state unless it is
registered” with the Bureau or an exception applies. RSA 421-B:17 (Supp.
2015) (repealed and reenacted 2015) exempts various securities from
compulsory registration.

¶30 The respondents assert that several of their sales were exempt
under: (1) the isolated sale exemption in RSA 421-B:17, II(a)(2); or (2) the
existing security holder exemption in RSA 421-B:17, II(p). They also argue that
the sale to investor C.C., which occurred outside New Hampshire, was exempt.
Finally, they contend that the director erred by fining them for each
unregistered security sold, rather than merely for each transaction.

i. Isolated Sale Exemption

¶31 The respondents first submit that RSA 421-B:17, II(a)(2) exempted
the purchase by investor F.H. and the first purchase by investor couple
N.S./T.W. from registration. They challenge the director’s determination that
the number of purchasers of Advent securities at the time of these investments
exceeded the numerical thresholds in RSA 421-B:17, II(a)(2)(A). RSA 421-B:17,
II(a)(2) provides an exemption for:

Any sale of securities by an issuer, if:

(A) The number of purchasers of securities of the issuer, in
all jurisdictions combined, does not in consequence of the sale,
exceed 10 in number during any 12 consecutive months and 25
in number during the issuer’s existence.

(B) The securities sold in reliance on this subparagraph have
not been offered to the public by any form of general solicitation
or general advertisement.

10
(C) A commission or remuneration is not paid or given,
directly or indirectly, to a person other than a broker-dealer
registered under this chapter or an agent registered under this
chapter for soliciting a prospective purchaser.

(D) Except for sales of securities registered under the
Securities Act of 1933 or exempted by section 3(b) of that act, the
seller reasonably believes that all buyers are purchasing for
investment.

(Emphasis added.) The legislature’s use of the phrase “in reliance on this
subparagraph” in RSA 421-B:17, II(a)(2)(B) indicates that the requirements
listed under (A) to (D) should be read together, so that a sale must meet all four
requirements to qualify for this registration exemption.

¶32 The director found, and no party contests, that the Bureau’s exhibit
listing Advent’s securities sales establishes the dates and numbers of sales
necessary to determine whether the Act’s registration exemptions applied. This
exhibit reflects that Advent made its first sale on March 26, 2008, to an out-of-
state investor. F.H. invested on October 12, 2010, and N.S./T.W. first invested
on February 17, 2012.

¶33 The director ruled that the exemption in RSA 421-B:17, II(a)(2) did
not cover any of Advent’s transactions because “during the twelve month period
from March 26, 2010 to March 26, 2011, Advent and Randall Fincke sold
Advent securities to twelve investors, and from March 26, 2008 to December
31, 2015, Advent and Randall Fincke sold securities to 71 investors.” The
respondents posit that the director erred by considering sales subsequent to
each investor’s first purchase in determining that the isolated sale exemption
did not apply.

¶34 We agree with the respondents. In setting numerical thresholds for
the exemption, RSA 421-B:17, II(a)(2)(A) looks to “[t]he number of purchasers
. . . in consequence of the sale.” As relevant here, “consequence” is defined as
a “result that follows as an effect of something that came before.” Black’s Law
Dictionary 383 (12th ed. 2024). The statute therefore considers the number of
purchasers up until the time of the sale, plus the purchaser whose sale is at
issue. It does not, however, take into account purchases after the sale at
issue. A subsequent increase in “[t]he number of purchasers” that arises by
way of later transactions does not occur “in consequence of the sale.” RSA
421-B:17, II(a)(2)(A). Counting subsequent sales to determine whether the
exemption covers a particular purchaser’s investment thus distorts the
statute’s plain text. See id.; Boucher, 176 N.H. at 274 (noting that we construe
statutory language “according to its plain and ordinary meaning”); RSA 21:2.
Further, and as the respondents note, the director’s interpretation yields the
“absurd or unjust result” that a sale initially exempt from registration may

11
thereafter become illegal due to later, unforeseen sales. Boucher, 176 N.H. at
274.

¶35 Advent had sold securities to fourteen purchasers in total upon
F.H.’s investment, and to a total of twenty-four purchasers upon N.S./T.W.’s
first investment — fewer than the limit of twenty-five purchasers “during the
issuer’s existence.” RSA 421-B:17, II(a)(2)(A). As for the twelve-month
threshold, the statute specifies that “[t]he number of purchasers . . . in
consequence of the sale, [may] not exceed 10 in number during any 12
consecutive months.” Id. (emphasis added). This language indicates that the
sale at issue may not directly cause “[t]he number of purchasers” to exceed ten
during a twelve-month period. Id. Accordingly, we consider the twelve-month
period immediately leading up to and including the date of each sale. Advent
sold securities to only nine investors between October 12, 2009 and F.H.’s
purchase on October 12, 2010, and to only five investors between February 17,
2011 and N.S./T.W.’s first purchase on February 17, 2012. Both investments
thus fell within the numerical thresholds set forth in RSA 421-B:17, II(a)(2)(A).

¶36 The director did not, however, make sufficient factual findings to
ascertain whether the sale to F.H. and first sale to N.S./T.W. satisfy the other
requirements for the isolated sale exemption, which are listed in RSA 421-B:17,
II(a)(2)(B) to (D). We therefore reverse the director’s conclusion as to the
numerical thresholds in RSA 421-B:17, II(a)(2)(A) and remand for a
determination as to whether these sales otherwise qualify for the isolated sale
exemption.

ii. Existing Security Holder Exemption

¶37 The respondents also contend that RSA 421-B:17, II(p) exempted
N.S./T.W.’s second investment, D.I.’s second and third investments, and all
investors’ call and put options. In relevant part, RSA 421-B:17, II(p) provides
an exemption for:

Any transaction pursuant to an offer to existing security holders of
the issuer, where the securities held by such existing security
holders were issued by the issuers for value . . . if:

(1) No commission or other remuneration (other than a
standby commission) is paid or given directly or indirectly for
soliciting any security holder in this state, or

(2) The issuer first files a notice specifying the terms of the
offer and the secretary of state does not by order disallow the
exemption within the next 10 full business days.

12
The director found, and the respondents do not refute, that the respondents
did not file any record regarding a registration exemption with the Bureau. See
RSA 421-B:17, II(p)(2). The parties do, however, dispute whether the
respondents can satisfy the requirement in RSA 421-B:17, II(p)(1). Specifically,
the Bureau argues that “the record is clear that Gary Fincke was compensated
for his role in soliciting investors.” The respondents counter that apart from
reimbursement for Gary’s business expenses and loans to Advent, “his
compensation was deferred for the benefit of investors because there were
insufficient funds to pay him.”

¶38 The director made no findings as to whether Gary received
“commission[s] or other remuneration,” however. RSA 421-B:17, II(p)(1).
Consequently, we vacate the director’s conclusion that none of the
respondents’ pre-2016 sales were exempt under RSA 421-B:17 and remand for
factual findings sufficient to determine whether the respondents could claim
the existing security holder exemption in RSA 421-B:17, II(p) for any
investments.

iii. Extraterritorial Sale to Investor C.C.

¶39 The respondents also maintain that they did not need to register
the securities bought by C.C. because she purchased them outside New
Hampshire. C.C. bought securities in March 2012. RSA 421-B:30, I (2006)
(repealed and reenacted 2015) provided that the registration requirement in
RSA 421-B:11, I, “appl[ies] to persons who sell or offer to sell when: (a) An offer
to sell is made in this state, or (b) An offer to buy is made and accepted in this
state.” In addition:

[A]n offer to sell or to buy is made in this state, whether or not either
party is then present in this state, when the offer:

(a) Originates from this state, or

(b) Is directed by the offeror to this state and received at the
place to which it is directed, or at any post office in this state in
the case of a mailed offer.

RSA 421-B:30, III (2006) (repealed and reenacted 2015). “‘Offer’ or ‘offer to sell’
includes every attempt or offer to dispose of, or solicitation of an offer to buy, a
security or interest in a security for value.” RSA 421-B:2, XIX(b) (2006)
(repealed and reenacted 2015).

¶40 At all relevant times, C.C. resided in Maine. She learned about
Advent from a friend during a visit to Florida. Later, while in Maine, C.C.
communicated with Gary by phone and email before mailing a check and
signed documents to Advent’s office in Massachusetts. C.C. did not meet in

13
person with Gary or anyone else from Advent before she invested. The director
nonetheless found that the “cumulative evidence” presented at the hearing
showed that Gary’s offer to sell securities to C.C. “originate[d] from” New
Hampshire because: (1) Gary lived in New Hampshire, of which C.C. was
aware; and (2) he emailed C.C. to solicit her investment.

¶41 Under the plain text of RSA 421-B:30, III, however, C.C.’s
knowledge of Gary’s New Hampshire residence is inadequate to establish that
his offer was made in New Hampshire. Nor is the Bureau’s contention that
C.C.’s investment was sufficiently “[t]ethered to New Hampshire” to justify the
Act’s application correct. (Bolding omitted.) Rather, given that C.C. did not
execute the investment documents in or mail them to New Hampshire, the
director had to find that an element of Gary’s offer to her “[o]riginate[d] from
this state.” RSA 421-B:30, III(a). Under the applicable preponderance of the
evidence standard, this determination required proof that Gary more likely
than not communicated with C.C. by phone or email from New Hampshire
before she invested. See RSA 421-B:6-613(v); Appeal of Rockingham County
Sheriff’s Dep’t, 144 N.H. 194, 197 (1999) (discussing “preponderance of the
evidence” standard).

¶42 The hearing testimony establishes, at most, only one email and one
phone call between Gary and C.C. before she invested. When they testified,
neither Gary nor C.C. recalled where he was when emailing or phoning her.
Instead, Gary testified only that, over the five years he led Advent’s marketing
efforts, he “probably” conducted most business calls from New Hampshire and
used his home office as his primary worksite. Gary also stated, however, that
he “sen[t] emails from a lot of places” and often worked while in transit or from
Advent’s office in Massachusetts. Gary’s generalizations about having worked
primarily from his New Hampshire home office do not suffice to prove that any
element of his offer to C.C. more likely than not “[o]riginate[d] from this state.”
RSA 421-B:30, III(a).

¶43 As such, the director’s finding that the Act applied to C.C.’s
purchase of securities was unreasonable. See RSA 421-B:30, I, III(a). We
therefore determine that the respondents did not need to register the securities
that C.C. purchased. Having so concluded, we need not assess whether the
Bureau’s penalty for C.C.’s unregistered investment violated the dormant
Commerce Clause.

iv. Number of Fines

¶44 In addition to their argument that RSA 421-B:17, II(p) exempted
each investor’s call and put options from registration, the respondents assert
that the director wrongfully fined them $2,500 for each of the three securities
sold to investors. Observing that each set of three securities — a promissory

14
note and call and put options — was sold in a unified transaction, they argue
that each transaction only amounts to one violation of the Act.

¶45 Because the respondents’ sales of unregistered securities occurred
before the current Act’s enactment, we consider various provisions of the
predecessor Act. See RSA 421-B:7-701(a) (2022). “Any person who, either
knowingly or negligently, violates any provisions of this chapter may . . . be
subject to,” inter alia, “an administrative fine not to exceed $2,500.” RSA 421-
B:26, III (2006) (repealed and reenacted 2015). “Each of the acts specified shall
constitute a separate violation.” Id. The provision’s two preceding paragraphs
make clear that the maximum fine is “for each violation.” RSA 421-B:26, I, II
(2006) (repealed and reenacted 2015).

¶46 Given that RSA 421-B:11, I, makes it “unlawful for any person to
offer or sell any security in this state unless it is registered,” the respondents’
relevant acts or violations were their sales of unregistered securities. “‘Sale’ or
‘sell’ includes every contract of sale of, contract to sell, or disposition of, a
security,” RSA 421-B:2, XIX(a) (2006) (repealed and reenacted 2015), while
“‘[s]ecurity’ shall include any note; . . . [or] any put, call, straddle, [or] option,”
RSA 421-B:2, XX(a) (Supp. 2015) (repealed and reenacted 2015). The director
concluded that each promissory note, call option, and put option sold was a
security and, by levying a fine for each instrument, effectively determined that
the sale of each unregistered security constituted a violation. This finding
accords with the Act. See RSA 421-B:2, XIX(a), XX(a); RSA 421-B:11, I.

¶47 As discussed above, the director should assess on remand whether
RSA 421-B:17, II(p) exempts each investor’s call and put options from the
registration requirement. However, if that exemption does not apply, the Act
poses no bar to imposing a fine for each security sold.5

C. Fincke’s Liability

¶48 The respondents next submit that the director could not hold
Fincke jointly and severally liable with Advent. They contend that in an
administrative proceeding under the Act, the Bureau may not “impose joint
and several liability on corporate officers like Mr. Fincke for the actions of the
corporation.” We disagree.

¶49 As the final order states, Fincke and Advent both fall within the
Act’s definition of “[p]erson”: “an individual, corporation, . . . or any other
entity.” RSA 421-B:2, XVI (2006) (repealed and reenacted 2015); see also RSA

5 The respondents also assert that the director made an arithmetic error when tabulating the
number of registration violations. On remand — upon determining whether RSA 421-B:17, II(p),
exempted any investments from registration, and taking into account our conclusions that F.H.
and C.C.’s investments were exempt — the director should re-calculate the number of violations.

15
421-B:1-102(39) (2022). Under the predecessor Act, which pertains to the
respondents’ registration violations, “[a]ny person” violating the Act may face
administrative liability. RSA 421-B:26, III. Such liability may also extend to
“[e]very person who directly or indirectly controls” such a person and “every
employee of such person who materially aids in . . . the violation,” among
others. RSA 421-B:26, III-a (2006) (repealed and reenacted 2015).6 The Act
thus plainly permits the Bureau to sanction more than one “person” found to
have committed the same statutory violation.

¶50 Although the director’s order denying the respondents’ motion to
reconsider states that Fincke “exercised control over and was responsible for
the conduct of Advent . . . as its President,” the director also explained that
Fincke “materially aided Advent’s conduct” and “sold securities to investors.”
Indeed, the hearing testimony reflects that Fincke personally planned Advent’s
sales and marketing efforts, drafted updates to investors, and spoke with
investors and with regulatory counsel. The director could thus fairly conclude
that Fincke bore personal responsibility for Advent’s New Hampshire sales of
unregistered securities. See RSA 421-B:11, I. Therefore, the respondents’
suggestion that the Bureau imposed vicarious liability on Fincke solely in his
capacity as Advent’s “control person” misses the mark. So does their argument
that penalizing Fincke violated constitutional due process mandates because
the Bureau’s staff petition did not specifically plead a vicarious liability claim
against him. We accordingly affirm the Bureau’s imposition of joint and several
liability against the respondents.

D. Constitutionality of Penalty

¶51 Next, the respondents argue that the director’s fines, rescission of
the respondents’ New Hampshire securities sales, and permanent injunction
against offering or selling securities in New Hampshire amounted to an unduly
excessive penalty under the State and Federal Constitutions. Although we
normally review a decision regarding a sentence or penalty for an
unsustainable exercise of discretion, we review a party’s claim that a
sentencing decision violated constitutional rights de novo. See State v.
Burgess, 156 N.H. 746, 752 (2008).

¶52 We first address the respondents’ claim under the State
Constitution and rely upon federal law only to aid our analysis. State v. Ball, 124 N.H. 226, 231-32 (1983). To violate Part I, Article 33 of the New
Hampshire Constitution, “a sentence must be grossly disproportionate to the
crime,” such that there is a “great imbalance between the gravity of the offense

6 As the Bureau observes, the current Act’s provision pertaining to administrative enforcement
likewise stipulates that “every such person who is subject to such civil penalty” may also “be
subject to such suspension, revocation, or denial of any registration or license.” RSA 421-B:6-
604(d) (2022) (emphasis added).

16
and the harshness of the fines.” State v. Enderson, 148 N.H. 252, 259 (2002)
(brackets omitted). “[A]n abuse of sentencing discretion will also occur if the
[authority] fails to consider all the relevant factors necessary to the exercise of
its discretion.” Id. Nevertheless, the sentencing authority is “vested with broad
discretionary powers,” id., including “broad discretion to choose the sources
and types of evidence upon which to rely in imposing [a] sentence,” Burgess,
156 N.H. at 751.

¶53 The respondents raise several arguments to support their
overarching challenge to the penalties’ constitutionality. They first argue that
the director overlooked that: (1) their violation of RSA 421-B:11 was
inadvertent, as their counsel did not advise them that registration was
necessary; and (2) penalizing their pre-2016 sales serves no deterrent purpose,
because the current Act would exempt all these sales if it applied. The
respondents also posit that rescinding Advent’s securities sales may oppose
some investors’ desires. Lastly, they assert that the director lacked evidence
supporting his statement, in his supplemental order permanently enjoining the
respondents from offering or selling securities statewide, that their “acts
demonstrate a pattern of deceptive practices and non-compliance with
securities laws.”

¶54 In examining the director’s orders, we do not find that he ignored
“factors necessary to the exercise of [his] discretion,” Enderson, 148 N.H. at
259 (emphasis added), or that he exceeded the broad discretion accorded in
sentencing by considering improper evidence. See Burgess, 156 N.H. at 751.
Nonetheless, our reversal of the director’s rulings that the respondents
misrepresented facts in violation of RSA 421-B:3, I(b) and RSA 421-B:5-
501(a)(2) significantly alters the calculus as to the severity of punishment
appropriate to balance “the gravity of the offense” at hand. Enderson, 148 N.H.
at 259. We therefore vacate the imposed fines, rescission of sales, and
injunction and remand for the director to determine, in the first instance, the
appropriate penalties in light of this opinion.

¶55 The State Constitution provides at least as much protection as the
Federal Constitution under these circumstances. Id. at 258. Thus, we reach
the same result under the Federal Constitution as we do under the State
Constitution.

E. Award of Costs

¶56 Finally, the respondents challenge the director’s award of $60,000
in investigative and enforcement costs to the Bureau. We first consider the
respondents’ charge that RSA 421-B:6-604(g) (2022) authorizes an award of

17
costs, not attorney’s fees — which the Bureau included in its submission to the
director documenting its accrued expenses.7

¶57 RSA 421-B:6-604(g) provides: “In a final order, the secretary of
state may charge the actual cost of an investigation or proceeding for a
violation of this chapter or an order issued under this chapter.” As the Act
does not define “investigation” or “proceeding,” see RSA 421-B:1-102 (Supp.
2025), “we look to [these terms’] common usage, using the dictionary for
guidance.” Appeal of Port City Air Leasing, Inc., 177 N.H. 149, 153 (2024),
2024 N.H. 71, ¶10; see Boucher, 176 N.H. at 274 (noting that we construe
statutory language by its “plain and ordinary meaning”); RSA 21:2. As relevant
here, “investigation” means “[t]he activity of trying to find out the truth about
something,” especially “an authoritative inquiry into certain facts.” Black’s Law
Dictionary 987 (12th ed. 2024). “Proceeding” means “[a]ny procedural means
for seeking redress from a tribunal or agency” or “[t]he business conducted by
a court or other official body; a hearing.” Black’s Law Dictionary 1459 (12th
ed. 2024). Because the Act includes the actual costs associated with “an
authoritative inquiry into certain facts” and the “procedural means for seeking
redress” at a “hearing” before an “official body,” these definitions contemplate
the “Attorney’s Fees” the Bureau requested. As the Bureau’s itemized
submission reflects, the Bureau incurred these actual costs in litigating its
allegations against the respondents and preparing for the hearing.

¶58 The respondents also argue that the Bureau’s failure to file “a post-
hearing motion for allowance of costs” deprived them of due process. They
additionally contend that because the Bureau only submitted proof of its costs
after the director’s final order, the director improperly granted the Bureau’s
requested $60,000 figure without proof. However, the Bureau requested
$60,000 in costs in its 2023 staff petition, at the outset of the proceedings —
affording the respondents ample opportunity to dispute this request. Further,
given that the Bureau ultimately supplied evidence supporting its request, any
error in awarding these costs “did not affect the outcome below.” Kessler v.
Gleich, 156 N.H. 488, 494 (2007). We accordingly affirm the award of costs.

III. Conclusion

¶59 In sum, we reverse the director’s conclusion that the respondents
misrepresented material facts to investors in violation of RSA 421-B:3, I(b) and
RSA 421-B:5-501(a)(2). We also reverse his rulings that: (1) F.H. and
N.S./T.W.’s investments fell outside the numerical thresholds for an isolated
sale exemption under RSA 421-B:17, II(a)(2)(A); and (2) the respondents
illegally failed to register C.C.’s investment, which occurred outside New

7 As no party argues that RSA 421-B:6-604(g) (2022) should not apply to the Bureau’s costs to
investigate and enforce violations of the predecessor Act, we assume, without deciding, that this
provision applies.

18
Hampshire. We further vacate the director’s determination that none of the
respondents’ sales qualified for an exemption under RSA 421-B:17. Finally, we
vacate the portions of the director’s orders specifying the fines, rescission of
sales, and injunction imposed. We otherwise affirm the director’s orders and
remand for further proceedings consistent with this opinion.

Affirmed in part; reversed in part;
vacated in part; and remanded.

COUNTWAY and WILL, JJ., concurred.