Are You Creating a Security? The Howey Test Knows: A Look At SEC vs. Howey

Imagine going back in time to the 1930s and 40s, when a company called Howey bought acres of land, divided it into strips and sold them to tourists. Each strip of land had 48 orange trees, and Howey would then lease the land back from the new owners to farm the oranges. It all seemed like a simple transaction, but the SEC disagreed, arguing this was a security and needed to be registered or exempted. This led to the landmark case of SEC vs. Howey, which established the "Howey Test" used today to determine if something is a security. There are four elements: an investment of money, in a common enterprise, with an expectation of profit, based on the work of others. If you're working on a project, ask yourself if it meets these criteria. It could be a note, a profit-sharing agreement or an investment contract - as long as there's a passive investor expecting profit from your work, it's likely a security. Always ensure you're doing the right thing for your investors, whether it's registering the security or ensuring it falls under an exemption.

Read more about the SEC and Reg D - The SEC And It’s Reg D: https://www.moschettilaw.com/sec-reg-d/

Read more about Reg D - What is Reg D? The King of Securities Exceptions: https://www.moschettilaw.com/reg-d/

Moschetti Syndication Law Group is a boutique syndication law firm, serving small and growth-bound syndicators, as well as private equity firms. Our attorney, Tilden Moschetti, is determined to keep the firm’s ‘boutique’ size so we can tailor the services to each client’s unique needs without turning the firm into a faceless factory churning out private placement memorandums or passing unnecessary overhead expenses onto our clients. (As our client, you’ll only pay a fixed fee, so no surprises.) As for the client experience, we give real-time answers with Tilden Moschetti without making you book an official appointment or get passed along to associates or paralegals. We’ll work with your ambitions and overall vision to help you close the current deal and fill in that ‘missing’ piece – whatever you need – to keep adding more syndications to your portfolio. We keep syndicators syndicating (TM).

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