Investment Contact Case in New York
In People v. First Meridian Planning Corp. (86 NY2d 608, 658 N.E.2d 1017, 635 N.Y.S.2d 144 ), the Court of Appeals applied the Howey test (Securities & Exchange Commission v. W.J. Howey Co) in determining that a transaction involving a portfolio of numismatic coins and other properties satisfied the definition of an investment contact.
The Court rejected the claim that a finding of a "security" requires some "document, akin to a bond, note, etc. evidencing an interest in tangible or intangible property, and cannot refer to the property or commodity itself, in this case numismatic coins." (Id. at 619.)
It further clarified that Howey "specifically eschewed requiring the existence of some 'paper' formally evidencing the interest offered or sold, 'it being immaterial whether the shares in the enterprise are evidenced by formal certificates or by nominal interests in the physical asset employed in the enterprise.'" (Id.)
In concluding that the transaction involved a security, the Court noted that "the sales pitch used to induce these purchases offered a package which included not only the tangible coins but a spectrum of supposedly profit-enhancing services, all part of an investment plan," including the expertise of dealers in selecting the coins to be purchased and in "monitoring their value in a fluctuating market . . . ." (Id. at 621.)
Although the case appears to have involved an interest in the portfolio, as opposed to the outright sale, the Court cited federal cases for the proposition that Howey has been applied "to find that arrangements for the purchase of various tangible properties or commodities . . . constituted the sale of securities," where the requirements of an investment contract have been met. (Id. at 619-620.)