The Howey Test and Investment Contracts

In the last Lawcast I talked about the “Howey Test” for determining when an investment contract is a security. The Howey Test has been applied to find that many non-traditional investments are a security.

So for instance, in a later case, the court found that sale of shares in a housing cooperative that were bundled with the cost of an apartment to be used as a residence and where the coop income is used for common operating expenses and upkeep of the building, there was not a securities transaction where the investors were attracted solely by the prospect of acquiring a place to live, and not by financial returns on their investments.

However, courts have found that the sale of a condominium unit itself can be a security where (i) the offer of the unit is accompanied with an opportunity to participate in a rental pool; (ii) the offer of the unit requires use of an exclusive rental agent; (iii) the offer of a unit that limits time of use of the owner or involves shared ownership (time share arrangements); or (iv) advertising the sale of a unit with an emphasis on economic benefit (such as rental income or tax benefits).

Applying the Howey Test, courts have interpreted a security to include such diverse items as citrus groves, warehouse receipts, chinchillas, minks, diamonds, bullion, pay phones, prepaid phone cards, real estate and equipment, and condominium units, when they were offered or sold under circumstances involving the investment of money and expectation of a return through the efforts of others.

The Howey Test actually interprets an “investment contract” as that term is used in the federal securities laws and, as later clarified by the Supreme Court in Landreth Timber Co. v. Landreth, is not meant to be used to decide whether all securities are indeed a “security.” Accordingly, where the sale of a business is completed through the sale of stock or other equity interests, if the ultimate success of the investment is dependent on the efforts of the investor/buyer, even though the stock or other equity is clearly a security in the statutory definition, the Howey Test does not apply.

In particular, the Landreth court held that where a business is sold via the sale of the equity in the business, it is a security and the registration and exemption provisions of Section 5, broker-dealer registration requirements under the Exchange Act and anti-fraud provisions under both the Securities Act and Exchange Act apply. However, as I will talk about in future Lawcasts, later SEC guidance and no action letters, as well as various state statutes have carved out an exemption from the broker dealer registration requirements in this sale of business fact set.