Brief Fact Summary. Koscot Interplanetary, Inc. (Defendant) created a pyramid style â€œsales campaignâ€ for cosmetics where shares were dispersed internally for which buyers brought in new product â€œsellersâ€.
Synopsis of Rule of Law. Investment contracts exist when the managerial efforts, not the investor’s, aresubstantial and critical, and the success or failure of the business is contingent upon them.
Issue. If the efforts of those other than the investor are integral to the triumph or collapse of a business, does that constitute an investment contract?
Held. (Gewin, J.) Yes. Following theHowey test, an investmentcontract is comprised of three factors: (1) a monetary investment (2) in a common enterprise with (3) profits gleaned exclusively from efforts of others. In this case, money is obviously invested in a common enterprise in which the profits of investors are reliant on the acts and accomplishments of those pursuingthe investment. With regard to the third component, the issue is whether or not to apply a literal or functional approach. Case law succeeding Howey has warned against a literal approach, stating that the appropriate test is whether the efforts of those other than the investor are integral to the success/failure of business. If the latter is applied, the roles of investors in Koscot are similar to those in SEC v. Glen Turner Enterprises, translating to following: investor participation was severely limited, with closing the sale requiring no effort whatsoever. Hence, the investors return was restricted to the promoters efforts, who maintained control over managerial procedures upon which the profits were contingent, proving this is not a standard licensing agreement. Reversed and remanded.
A common enterprise managed by respondents or third parties with adequate personnel and equipment is therefore essential if the investors are to achieve their paramount aim of a return on their investments.View Full Point of Law