This post is the third in a series exploring when securities laws impact business transactions.
In my previous posts, I provided a general overview of the definition of a “security” under federal securities laws. One of the categories of investments that constitutes a “security” under federal law is an “investment contract.” The term is a rather open-ended one, but under the so-called Howey Test, the term includes any arrangement or transaction that is “an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others.” As a result, any transaction which constitutes an investment contract is a security under federal securities law. In this post, we’ll explore when an interest in a limited liability company (“LLC”) or a partnership constitutes an investment contract, and consequently, a security.
When the Securities Act of 1933 was written, there was no such thing as an LLC or a limited partnership. The only type of partnership-like entity available was a general partnership, which featured unlimited joint and several liability for the partners. As a result, it was very rare that someone would invest in a partnership in a passive role. Therefore, partnership interests were left out of the definition of a “security” under the Securities Act.
Now, with the advent of limited partnerships, limited liability partnerships, limited liability limited partnerships, and limited liability companies, there are a myriad of choices available that allow an investor to invest in a partnership and enjoy limited liability. Therefore, passive investing in partnerships and partnership-like entities is now common. But because interests in these kinds of entities are not listed within the definition of a “security” under the Securities Act, a partnership or LLC interest will only be considered a security if it constitutes an investment contract.
That said, interests in many LLCs and partnerships fall under the definition of an investment contract. For instance, in manager-managed LLCs, the non-managing members are essentially passive owners. The same also applies to limited partners in a limited partnership. An investment contract is, quintessentially, an arrangement where a passive owner invests money with another person who promises to use that money to make a profit for the passive owner. Therefore, in each of these instances, the non-managing member interests and the limited partnership interests would be considered investment contracts and consequently securities.[1]
Conversely, a general partnership interest in a partnership or a managing member interest in an LLC are generally not securities, because the control that the general partner or managing member has over the company causes the general partner or managing member’s interest to fail to meet the final prong of the investment contract definition (that is, profit arising primarily from the efforts of people other than the investor). Likewise, members in a member-managed LLC are usually not deemed to be holders of securities if they have the ability to participate in management.
However, even if a member of an LLC or a partner in a partnership has management rights on paper, the LLC or partnership interest could still be considered an investment contract, if in practice, there is no expectation that the investor will be active in generating profits. In securities law, substance often trumps form. Thus under Williamson v. Tucker, 645 F.2d 404 (5th Cir 1981), the Court of Appeals for the Fifth Circuit held that a general partnership interest could be a security if the investor was dependent on the promoter and could not exercise meaningful control. Examples of such a situation are (i) where the managing partner cannot be replaced or is very difficult to replace, (ii) where the investors are inexperienced in business affairs and cannot exercise their abilities to participate in management, or (iii) where the promoter has unique managerial abilities which cause de facto reliance on the promoter. Generally, if one of these situations exist at the time of initial investment, then the investment is likely to be an investment contract.
Whether a partnership interest or an LLC interest is a security often depends highly on context. The less involved the holder of the interest is in the activities of the company, the more likely that the interest will be considered a security. In addition, the relative sophistication of the purchaser of the interest as compared with company management also has a role to play. Interests sold to less sophisticated investors are more likely to be considered a security than those sold to more sophisticated ones. Unfortunately there is no bright line test that determines whether an LLC or partnership interest is a security, and consequently, the context of the transaction pays a significant role.
Footnotes
[1] It is possible that a limited partnership interest or a non-managing member interest in an LLC could be outside the definition of an investment contract if the economic realities indicate that the limited partner has significant and legal control of partnership management. See Steinhardt Group v. Citicorp, 126 F.3d 144 (3rd Cir. 1997).
———————————–
© 2012 Alexander J. Davie — This article is for general information only. The information presented should not be construed to be formal legal advice nor the formation of a lawyer/client relationship.
