The opinion of the court was delivered by
R.S. COHEN, J.A.D.
Defendants were indicted by the State Grand Jury for conspiracy to commit theft (N.J.S.A. 2C:5-2; 2C:20-4; 2C:20-9), and theft of over $3 million by failing to make required disposition (N.J.S.A. 2C:20-9). They moved to dismiss the indictment on double jeopardy grounds, citing the punitive effects of the Chancery Division judgment rendered against them for securities fraud for the same conduct alleged against them in the indictment. The Law Division granted defendants’ motion and dismissed the indictment. The State appealed; we reverse.
Defendants Robert J. Darby and Kathleen C. Darby are husband and wife. Defendant Kim Handy is their daughter. Robert J. Darby was once a registered stockbroker and securities dealer. In 1975, the Darbys formed Premium Resources, Inc., to conduct the business of financing payment of insurance premiums for businesses and persons. They attempted to raise capital through a public stock offering, but were unsuccessful. As an alternative, they began in 1977 to sell interest-bearing “thrift certificates.” From 1977 to 1986, there were over 200 buyers, mostly unsophisticated people. The State charged, in both civil and criminal proceedings, that the “thrift certificates” were nonexempt securities under the Uniform Securities Law (1967), N.J.S.A. 49:3-47 et seq., and thus should have been registered; that the proceeds of the sales of the certificates were improperly commingled with other corporate funds and misused, and that the sales of the certificates were based upon material misrepresentations as to their nature and value.
Premium Resources, Inc. was an unsuccessful business, and ultimately collapsed. The “thrift certificates” became worthless. In May 1986, the Attorney General filed a complaint in the Chancery Division on behalf of the Chief, Bureau of Securities, naming the corporation, the Darbys, Handy and others as defendants. The complaint charged defendants with violations of the Uniform Securities Law (1967) (“the Law”) and sought a declaratory judgment that defendants had violated the Law, a preliminary and permanent injunction against unlawful practices and any sale of securities by defendants, appointment of a receiver, monetary penalties, and “such other relief as the Court deems equitable and just.”
The indictment was rendered in December 1986. As already mentioned, it targeted the same activities charged in the civil complaint, except that it covered a somewhat shorter time.
Defendants then moved to stay the proceedings in the Chancery Division until disposition of the indictment. The thesis of the motion was that the defendants’ rights to avoid self-incrimination would be violated by requiring them to participate in the Chancery litigation. The motion was denied, and both this court and the New Jersey Supreme Court denied interlocutory relief. See State v. Kobrin Securities, Inc., 111 N.J. 307, 544 A.2d 833 (1988).
The Chancery suit was then pretried. The pretrial order recited the State’s damage claims, as required by R. 4:25-1(b)(5). First was the claim for “civil penalties,” pursuant to N.J.S.A. 49:3-70(b), in the amount of $200 times the number of investors. Second was “[djisgorgement of all monies acquired, including profits, in connection with the unlawful for sale [sic] and sale of Premium’s securities in an aggregate amount of at least $3.4 million.” Third was a permanent injunction against “any securities related activities.” Attached to the pretrial order was a portion of the Attorney General’s pretrial memorandum, which stated his damage claims in essentially the same words.
We have very little of the record of the Chancery suit. It appears, however, that there was an interlocutory order pursuant to which defendants’ assets worth some $.5 million were seized, a custodian was appointed to hold the seized assets, and preliminary injunctions were entered against securities-related actions by defendants. The final judgment was entered on July 6, 1988, after a 20-day trial. It declared that defendants had violated the Uniform Securities Law (1967), permanently enjoined them from any securities-related activities in New Jersey, entered judgment against defendant Handy for $12,500, entered judgment against defendant Handy for civil penalties of $128,600 ($200 x 643), entered judgment against the Darbys together for civil penalties of $163,400 ($200 x 817), entered judgment against Handy and the Darbys “individually, jointly and severally” for $3.1 million “representing the restoration of money unlawfully acquired from investors in Premium Resources, Inc____,” and ordered the previously appointed custodian to retain the assets he held “for the benefit of the investors____” No appeal was taken from this judgment.
Defendants Darby and Handy then moved to dismiss the indictment on the thesis that they had been punished by the judgment entered against them in the Chancery action, and that prosecution of the indictment put them again in jeopardy for the same offenses. The Law Division judge granted defendants’ motions. He reasoned that the effect and purpose of the Chancery Division judgment was punitive; that the “fine was so large that it can only be considered punishment”; and that the injunctions against securities activities, the retention of defendants’ assets and the $3.1 million disgorgement order were grounded in deterrence and retribution, the two purposes of punishment. The judge concluded that the Chancery judgment exhausted the State’s ability to constitutionally punish defendants, and thus he dismissed the indictment.
No person may be “subject for the same offense to be twice put in jeopardy of life or limb, ...” by the federal government, U.S. Const., amend. V, or any state, Benton v. Maryland, 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716 (1969). New Jersey’s constitution expresses a coextensive guarantee, in different words. N.J. Const. of 1947, art. 1, para. 11. State v. Farmer, 48 N.J. 145, 168, 224 A.2d 481, cert. denied, 386 U.S. 991, 87 S.Ct. 1305, 18 L.Ed.2d 335 (1967).
The double jeopardy guarantees protect against a second prosecution for the same offense after acquittal or after conviction, and against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656, 665 (1969). They protect against a second proceeding only if its essence is criminal. They do not prohibit the imposition of civil sanctions and criminal penalties for the same act or course of conduct. Helvering v. Mitchell, 303 U.S. 391, 399, 58 S.Ct. 630, 633, 82 L.Ed. 917, 922 (1938); In re Garay, 89 N.J. 104, 111, 444 A.2d 1107 (1982). Thus, the dispositive question is whether the sanctions imposed on defendants in the Chancery proceedings should be considered criminal or civil.
The penalties were imposed in proceedings brought by the Attorney General under the Uniform Securities Law (1967), N.J.S.A. 49:3-47 et seq. The Law was modeled after a statute approved by the National Conference of Commissioners on Uniform State Laws in 1956, which has been adopted in thirty-six states. See 7B U.L.A. 509 (1988). Our Law departs from the Uniform Securities Act in a number of respects. Data Access Sys., Inc. v. State, 63 N.J. 158, 162, 305 A.2d 427 (1973).
Like the uniform act, our Law provides for criminal penalties for wilful violations. N.J.S.A. 49:3-70(a); 7B U.L.A. 631-632 (§ 409(a)). It also provides for suspension or revocation of the registration of a broker-dealer, agent or investment advisor for wilful violations. N.J.S.A. 49:3-58(a)(ii); 7B U.L.A. 542 (§ 204(a)(B)). It permits the Superior Court to issue orders at the instance of the Chief, Bureau of Securities, to enjoin illegal activities, to enjoin all securities-related activities by violators, and to appoint a receiver of illegal gains of a violator and a receiver of all of the assets of a business firm which is a violator. N.J.S.A. 49:3-69; 7B U.L.A. 628 (§ 408).
New Jersey’s Law provides yet another sanction, not contained in the uniform act, of monetary penalties for wilful or non-wilful violations of the Law or any rule or order of the Bureau of Securities, to be sued for by the Chief, Bureau of Securities, in summary proceedings under the penalty enforcement law. N.J.S.A. 49:3-70(b); 2A:58-1 et seq. The § 70(b) monetary penalties are apparently unique additions to the uniform act, made only by New Jersey. See Mayflower Securities Co. v. Bureau of Securities, 64 N.J. 85, 90, 312 A.2d 497 (1973).
In ruling on the extent of the procedural guarantees to which defendants were entitled, the Chancery Division Judge characterized the § 70(b) monetary penalties as civil. The State argues that defendants’ failure to appeal from the Chancery Division judgment collaterally estops them from contesting that characterization in the present proceedings.
We disagree. The issue is purely one of law, and the Chancery Division ruling was not made in the context of the constitutional guarantees against double jeopardy. The issue is one of public importance, and, finally, we decline to estop defendants because they decided to devote their litigation resources to a plausible attack on the indictment instead of a long-shot appeal from the Chancery Division judgment. Cf. City of Plainfield v. Public Serv. Elec. & Gas Co., 82 N.J. 245, 257-259, 412 A.2d 759 (1980).
Whether a penalty should be generally characterized as civil or criminal is primarily a matter of statutory construction. United States v. Ward, 448 U.S. 242, 248, 100 S. Ct. 2636, 2641, 65 L.Ed.2d 742, 749, reh’g denied, 448 U.S. 916,101 S.Ct. 37, 65 L.Ed.2d 1179 (1980); Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 132, 527 A.2d 1368 (1987). The legislative labeling of a penalty as civil is accorded substantial weight. Id.
The Legislature did not expressly label the § 70(b) penalties at all. The section of the enacted Senate bill (S. 327) that became L. 1967, c. 93, § 23 had no heading. Section 23, as printed in the Public Laws of New Jersey, is headed “Violations; penalty.” The label “criminal penalties” which now appears at the head of § 70 in the Annotated Statutes is not the product of legislative action, is not part of the statute, and is therefore not an appropriate clue to legislative intent. See N.J.S.A. 1:1-6; 1:3-1; State v. Blinsinger, 114 N.J.Super. 318, 276 A.2d 182 (App.Div.1971); State v. Brown, 188 N.J.Super. 656, 661, 458 A.2d 165 (Law Div.1983), certif. denied, 101 N.J. 280, 501 A.2d 944 (1985).
Comparing the language of § 70(b) with § 70(a), however, makes the legislative intent clear. Section 70(a) applies to wilful violators, relates to conduct described as “crime,” speaks of “guilt” and “imprisonment,” refers to proceedings initiated by indictment or information, and contains a five-year statute of limitations, the same as N.J.S.A. 2C:l-6b(l). Section 70(b), on the other hand, applies to non-wilful violators, describes prohibited conduct as violations instead of crimes, makes the violator “liable” for only a monetary “penalty,” and refers to collection proceedings under N.J.S.A. 2A:58-1 et seq., which, R. 4:70 makes clear, are civil in nature. See Department of Conservation & Eco. Dev. v. Scipio, 88 N.J.Super. 315, 319-320, 212 A.2d 184 (App.Div.), certif. denied, 45 N.J. 598, 214 A.2d 32 (1965).
In Kimmelman v. Henkels & McCoy, Inc., supra, our Supreme Court decided that the per-diem monetary penalties imposed by the state Antitrust Act, N.J.S.A. 56:9-10c, were civil, and thus did not invoke all of the constitutional protections available to defendants in criminal prosecutions. In so ruling, the Court adopted a seven-part test used by the U.S. Supreme Court in holding legislation invalid which imposed forfeiture of citizenship for leaving or remaining outside the country to evade military service, without affording the procedural safeguards of the Fifth and Sixth Amendments:
Whether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment—retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned. [Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644, 661 (1963).
The test is applied to the face of the statute, and not to its application in the particular case. Kimmelman, supra, 108 N.J. at 132, 527 A.2d 1368.
Applying the test to § 70(b) yields a mixed result, weighted toward a conclusion that the penalties are civil. (1) There is no affirmative disability connected with § 70(b). The dealer deregistration remedy of § 58 is remedial and, like attorney disbarment, is not a punishment. Ex parte Wall, 107 U.S. 265, 2 S.Ct. 569, 27 L.Ed. 552 (1883); In re Addonizio, 95 N.J. 121, 123-124, 469 A.2d 492 (1984). (2) Monetary penalties have historically been regarded both as punishment and as serving remedial goals, depending on the circumstances. (3) Section 70(b) penalties are imposed without a finding of scienter. (4) Section 70(b) penalties, at the time, were limited to $200 for the first violation and $500 for subsequent violations. Although the two-level penalty maximum suggests an element of punishment, the low level of the maximum in comparison with the dollar extent of the generality of securities violations suggests the penalties might be inadequate as punishment. (5) Wilful securities violations are punishable as crimes not only under § 70(a), but also under the theft provisions of the Criminal Code. N.J.S.A. 2C:20-1 et seq. Nonwilful violations present a considerably different level of culpability and public danger, and thus invite a remedial rather than punitive response. (6) The rationally connected alternate purpose of § 70(b) penalties is to help defray the cost of government investigation and enforcement. In re Garay, supra, 89 N.J. at 114, 444 A.2d 1107. (7) The $200-per-violation penalties, and even the $500-per-subsequent-violation penalties, are not excessive as a rough measure of government’s costs.
We have concluded that § 70(b) penalties are not on their face criminal. But that does not end the double jeopardy inquiry, for a civil penalty actually assessed must be tested for punitive purpose and effect as applied to the particular facts involved. The U.S. Supreme Court recently confronted the problem of civil penalties and double jeopardy in United States v. Halper, 490 U.S. 435, 109 S.Ct. 1892, 104 L.Ed.2d 487 (1989). Halper was convicted of filing 65 Medicare claims which were false to the extent of $9 each and resulted in an overcharge to the federal government of $585. He was sentenced to two years’ imprisonment and fined $5,000. The government then brought an action under the False Claims Act, 31 U.S.C. §§ 3729-3731, for the same conduct. Defendant was exposed to a civil penalty of $2,000 plus double damages plus costs for each violation, for a total of more than $130,000. The District Court entered judgment for $16,000, which it believed sufficient to compensate the Government for its loss and expenses in investigating and prosecuting Halper’s false claims, to which, the Court believed, the $130,000 exposure bore no rational relation. The Government took a direct appeal to the Supreme Court.
The Supreme Court reviewed its earlier opinions and summed them up:
The relevant teaching of these cases is that the Government is entitled to rough remedial justice, that is, it may demand compensation according to somewhat imprecise formulas, such as reasonable liquidated damages or a fixed sum plus double damages, without being deemed to have imposed a second punishment for the purpose of double jeopardy analysis. These cases do not tell us, because the problem was not presented in them, what the Constitution commands when one of those imprecise formulas authorizes a supposedly remedial sanction that does not remotely approximate the Government’s damages and actual costs, and rough justice becomes clear injustice. [Halper, supra, 490 U.S. at 446, 109 S.Ct. at 1900-1901, 104 L.Ed.2d at 500.]
To determine whether a civil penalty constitutes punishment for the purpose of double jeopardy analysis, the Court said that it had to assess the character of the sanctions actually imposed and not the label they carried. Thus, the determination whether a civil sanction constitutes punishment for double jeopardy analysis “requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment.” Id. at 447, 109 S. Ct. at 1901, 104 L.Ed.2d at 501.
Retribution and deterrence are the twin goals of punishment, and are not legitimate non-punitive governmental objectives. Id. at 449, 109 S.Ct. at 1902, 104 L.Ed.2d at 502; Bell v. Wolfish, 441 U.S. 520, 539 n. 20, 99 S.Ct. 1861, 1874 n. 20, 60 L.Ed.2d 447, 468 n. 20 (1979). Thus, Halper held that a civil sanction that is not remedial, but rather serves only retributive or deterrent purposes, is punishment; as a result, a defendant who has already been punished in a criminal prosecution may not be subjected to an additional civil sanction to the extent that the latter may not fairly be characterized as remedial, but only as a deterrent or retribution. Thus, if a previously punished defendant is subjected to a civil penalty that bears no relation to the goal of compensating the government, but rather appears to qualify as additional punishment, the government must prove its damages and costs, so that the court can exercise its judgment to fix a civil sanction that will not cross the line between remedy and punishment. Halper, supra, 490 U.S. at 449-450, 109 S.Ct. at 1902-1903, 104 L.Ed.2d at 502-503. The Supreme Court remanded the matter to the District Court to permit the Government to prove its actual losses and expenses arising from Halper’s fraud.
Unlike the present case, the Halper criminal conviction and sentence came first; the civil penalty proceedings followed. Thus, the double jeopardy consequences of the imposition of punitive “civil” penalties could be avoided by assuring that the penalties were not disproportionate to the Government’s losses and expenses.
Here the civil penalty proceedings are complete. If punitive penalties were imposed, according to the Halper standard, they serve to bar the State from seeking further punishment by way of criminal proceedings for the same conduct. We need not decide whether the double jeopardy bar to criminal proceedings can be removed by returning, before the criminal trial, to the Chancery Division to reduce to a legitimate level the monetary penalties already imposed there. The State has made no effort to take that course.
The Chancery Division judgment against defendants arose out of an omnibus proceeding, and thus had a number of aspects. It barred them from further securities-related activity, a clearly remedial measure. It assessed penalties of $163,-400 against the Darbys together and of $128,600 against Handy, for a total of $292,000. The judgment was pre-Halper, and the State did not make a showing in the Chancery Division of its enforcement costs in order to justify the level of civil penalties assessed. The State did submit such proofs later in opposing the subsequent motion to dismiss the indictment. It showed expenses of $205,000, almost three-quarters of which was the cost of the estimated time spent on the matter by two deputy attorneys general. The remaining quarter was the cost of the estimated time spent by Bureau of Securities people. Those are legitimate expenses to be considered in a Halper analysis. See Halper, supra, 435 U.S. at 446 n. 6, 109 S. Ct. at 1900 n. 6,104 L.Ed.2d at 500 n. 6 (“the Government’s investigative and prosecutorial costs”). Not included in the $205,000 were physical plant costs, supplies, travel, office expenses and trial costs. We cannot estimate these costs, but we are satisfied that the total of $292,000 in civil penalties was not disproportionate to the State’s costs, which were higher than the direct personnel costs contained in the State’s $205,000 estimate. Surely, the State gained no more than “rough remedial justice.” It is of no consequence that the Chancery Division did not have the State’s expense analysis before it. It is the objective relationship between the amount of the penalty and the Government’s losses and expenses that controls.
Defendants argue that the $3.1 million in “disgorgement” liability imposed by the judgment must also be considered punitive. Their thesis is that the disgorgement order was unauthorized by the Law and that its effect must be viewed as a significant part of the punitive effect of the total judgment.
Defendants are correct that the Uniform Securities Law does not specifically authorize the disgorgement order. It is not included in § 69(c), which authorizes suit by a receiver, and not by the Chief, Bureau of Securities, to recover the gains of illegal securities practices. It is not included in § 71, which describes violators’ civil liabilities to securities purchasers; that section contemplates claims by individual investors, but provides that its remedies are “in addition to any other rights or remedies that may exist in law or equity____” N.J.S.A. 49:3-71(h). It was included, however, in the Attorney General’s prayer for “such other relief as the Court deems equitable and just.”
The equity powers of the United States District Courts have long been held to include issuance of orders to disgorge illegal profits in statutory proceedings to enjoin regulatory violations. In Porter v. Warner Holding Co., 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332 (1946), the Supreme Court upheld an order requiring a landlord to stop collecting rents greater than permitted by wartime price controls, and also to disgorge all excess amounts already collected. The Supreme Court reasoned that, where the public interest is involved, the District Courts’ inherent equitable powers include disgorgement orders as ancillary remedies to afford complete relief, in the absence of clear and valid legislative restriction of that power. Id. at 398-400, 66 S.Ct. at 1089-1090, 90 L.Ed. at 1337-1338.
Disgorgement orders have been similarly approved in enforcement proceedings under the Housing and Rent Act of 1946, United States v. Moore, 340 U.S. 616, 71 S.Ct. 524, 95 L.Ed. 582 (1951), and under the Fair Labor Standards Act of 1938, Mitchell v. De Mario Jewelry, Inc., 361 U.S. 288, 80 S.Ct. 332, 4 L.Ed.2d 323 (1960).
The authority to order disgorgement of unlawful gains is inherent in the historic equity jurisdiction of the Superior Court, Chancery Division. Cf. Crowe v. DeGioia, 90 N.J. 126, 137-138, 447 A.2d 173 (1982). The principle was explained in Securities and Exch. Comm’n v. Texas Gulf Sulphur Co., 446 F.2d 1301 (2d Cir.), cert. denied, 404 U.S. 1005, 92 S.Ct. 562, 30 L.Ed.2d 558 (1971), reh’g denied, 404 U.S. 1064, 92 S.Ct. 733, 30 L.Ed.2d 753 (1972), that the general equity powers of the United States District Courts authorized them to order disgorgement of the profits of securities law violations, and that che SEC had the authority to seek that remedy. Id. at 1307-1308. Just as in the present case, the regulating securities statute provided other sanctions, including private remedies, and the government agency was afforded powers to prevent violations. The statute did not expressly authorize suit for disgorgement, but nothing in the legislation restricted the historic jurisdiction of equity. Similar rulings had already been made in other Circuits. See cases collected, Id. at 1307. We adopt the result as a sound and desirable one for proceedings under New Jersey’s Uniform Securities Law.
In only one reported state case, to our knowledge, has the question been presented whether an administrator of securities regulation has the power to seek, and the trial court has the power to order, disgorgement of profits illegally obtained in violation of the Uniform Securities Act. In reliance on the federal precedents we have mentioned, the Oklahoma Supreme Court recognized a disgorgement remedy as authorized by the inherent equity jurisdiction of its trial courts. State ex rel. Day v. Southwest Mineral Energy, Inc., 617 P.2d 1334 (Okla. 1980). State v. Buckeye Finance Corp., 54 Ohio St.2d 407, 377 N.E.2d 502 (1978), and Wee Mac Corporation v. State, 301 So.2d 101 (Fla.Dist.Ct.App.1974), are not to the contrary. They disapproved of suits by securities law administrators for rescission of unlawful transactions and restitution to the investors. Those were the remedies of individual investors, and went beyond the disgorgement order approved by Oklahoma.
Because the Chancery Division proceedings did not produce sanctions that served the punishment goals of retribution and deterrence, they did not constitute criminal proceedings for double jeopardy purposes. Thus, the prosecution of the indictment is not constitutionally barred, and the indictment should not have been dismissed.
Reversed.
An additional defendant and an additional count were dismissed for reasons irrelevant to the issues before us.
The pretrial order was not part of the record submitted to us. After oral argument, we obtained it from the Chancery Division, Ocean County.
We do not comment on the form of the disgorgement order. Compare the order entered in Securities and Exch. Commn v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1307 (2d Cir.), cert. denied, 404 U.S. 1005, 92 S.Ct. 562, 30 L.Ed.2d 558 (1971), rehg denied, 404 U.S. 1064, 92 S.Ct. 733, 30 L.Ed.2d 753 (1972).
We also do not say whether it is more correct for the State to seek a penalty in plenary proceedings in the Superior Court, or to assess a penalty in administrative proceedings and then Sue to collect if the penalties are not paid. See Mayflower Securities Co. v. Bureau of Securities, 64 N.J. 85, 90, 312 A.2d 497 (1973).
The Commissioners have approved a 1985 Uniform Securities Act intended to supercede the 1956 Uniform Act. Three states have adopted it. 7B U.L.A. 53 (Supp.1988).
United States v. Marcus Schloss & Co., 724 F.Supp. 1123 (S.D.N.Y.1989), is not contrary. There, defendant consented to the civil penalties in a settlement which permitted prosecution of parallel criminal proceedings. Cf. United States v. Hall, 730 F.Supp. 646 (M.D.Pa.1990).
Cf. In re Kaplan, 178 N.J.Super. 487, 494, 429 A.2d 590 (App.Div.1981) (dealing with the civil-criminal dichotomy in the context of the constitutional bar to ex post facto laws).
Section 409 of the Uniform Act is headed [criminal penalties]. It contains only criminal sanctions, however, and not New Jersey’s monetary penalties for violations irrespective of wilfulness.
See Sawran v. Lennon, 19 N.J. 606, 611-612, 118 A.4.2d 10 (1955).
See also Atkinson v. Parsekian, 37 N.J. 143, 154—156, 179 A.2d 732 (1962) (acquittal in Municipal Court of Title 39 violation does not bar administrative license suspension, the purpose of which is remedial); 3 LaFave & Israel, Criminal Procedure § 24.1(b), at 61-62 (1984).
Effective after the violations involved in this case, § 70(b) was amended to increase maximum penalties for first violation to $10,000 and for subsequent violations to $20,000. L. 1985, C. 405, § 13. We need not say whether the amendment sufficiently alters the equation to require the conclusion that the § 70(b) penalties are primarily criminal in nature.
Cf. In re Garay, supra, 89 N.J. at 114-115, 444 A.2d 1107, where the question was whether a per-violation civil penalty applied to a large number of small Medicaid frauds yielded a penalty so disproportionate to the harm caused by a defendant that the penalty was unreasonable. See Kimmelman, supra, 108 N.J. at 133, 527 A.2d 1368. A civil penalty of “unreasonable” size has a punitive, rather than remedial effect.
Interestingly, defendants argued, as they do here, that the disgorgement order was essentially punitive and not restitution. The Court of Appeals disagreed. Cf. Kvitka v. Board of Registration in Medicine, 407 Mass. 140, 551 N.E.2d 915, 918-919 (1990) (monetary exactions not permitted in the absence of victims suffering financial loss).