Securities Tests

This is not the first time that the designation of "Notes" as "Securities" have come in to question.

In fact, on quite a few occassions, such questions have gone as far as the Supreme Court in making a determination.

As a result of such cases, certain "Tests" have been developed and used to help determine if a particular note qualifies as a security.

Before I dive in, I just want to reiterate that in the past it has taken the Supreme Court to make a final determination. So my little analysis here is nothing more than that. -just my own little analysis. I'll tell you upfront that I can't say for sure if they're securities or not. It just really isn't all that clear to me. -But, I will say, that as I walk through the various tests it seems that they lean more towards being securities than not.

The best place to start in making a determination is Section 2(a)(1) of the Securities Act of 1933.

The basic, or default definition of a “security” in Section 2(a)(1) is the term “investment contract”.

If something is an "investment contract" it is a security".

From there, one should turn to the “investment contract test” set out by the Supreme Court in the case of SEC v. W.J. Howey Company, also know as the “Howey” test.

The Howey test basically says that an “investment contract” is "any contract, transaction or scheme whereby a person invests money, in a “common enterprise” and is led to expect profits from the efforts of others."

In the Supreme Court case of United Housing Foundation v. Forman, the Howey Test was determined as the “essential” test to all securities.

If any instrument, no matter what it is called, meets the Howey test, it is a security.

But don't get too comfy, because it also say, "if it does not meet the Howey test it may still be a security, but will have to justify its status as a security in some other definitional manner."

United Housing Foundation v. Foreman added that just because something is called “stock” doesn’t necessarily mean it is a security, despite the language of Section 2(a)(1) that specifically includes “stock” as a “security”. This has come to be known as the “economic reality test”, also known as the "basic common sense test".

>what does common sense tell you? -I know I'm investing to make a profit, and I know Prosper is selling to make a profit. So, yes, I would say the "economic reality" lands Prosper Notes in the realm of securities.

> so count it, that's: 1 YES, and 0 NO's.

(Yes, it's a security vs. No, it's not a security)

Next, in the first Howey test an investment contract requires an “investment of money”. That means the intention that the money is given over with the expectation that profit or return will follow.

>Are Prosper "Lenders" investing money? Yes they are. They are definitely not "loaning" money. That's WebBank's job, and if Prosper Lenders were "loaning" money, then we would all be dealing with a whole other can of Banking Regulation worms.

An “investment of money” under Howey means "the investor must have committed his assets to the enterprise in such a manner as to subject himself to financial loss." SEC v. Pinckney, 923 F. Supp. 76, 80 (E.D. NC 1996).

> so count that one as well, that's: 2 YES's, and 0 NO's.

Next, and I warn you, read slowly here, the second Howey test is that there must be a “common enterprise.” What is a common enterprise?

"Common Enterprise" is established by "commonality" which can be either, "Horizontal Commonality", "Vertical Commonality", or both.

Vertical commonality is "the dependence of the investors’ fortunes on the success or expertise of the promoter". See Long v. Shultz Cattle Co., Inc., 881 F.2d 129, 140-41 (5th Cir.1989

>(Not the case with Prosper. That's assuming Prosper is the Promoter of the Notes, and even if WebBank was considered the Promoter, which I wouldn't, it still doesn't apply.)

Horizontal commonality is the pooling of investor funds and interests.

>(This could be the case for Prosper, unless one bidder covers the whole "loan", or we should say, buys 100% of the Promissory Note)

The courts have further identified two kinds of vertical commonality: "broad vertical commonality", and "strict vertical commonality".

To establish “broad vertical commonality,” "the fortunes of the investors need be linked only to the efforts of the promoter". See Long v. Shultz Cattle Co., Inc., 881 F.2d 129, 140-41 (5th Cir.1989).

>(Not the case with Prosper)

“Strict vertical commonality” "requires the fortunes of investors be tied to the fortunes of the promoter". Brodt v. Bache & Co.

>(Not the case with Prosper)

The easier definition, the so-called “horizontal” commonality test requires there to be at least two investors who have a similar relationship in the business enterprise, that is, they all pool their investments and share in the profits.

>It doesn't occur to me often, but it's wrapping of my mind around these concepts of commonality, where I really feel the brunt of NOT BEING AN ATTORNEY.

However, I found a statement that says:

"The courts generally recognize that “horizontal” commonality (for example, the pooling of an investment by two or more investors) is a common enterprise."

Either way, my tally of "YES's" and "NO's" within the 2nd leg of the Howey Test looks like this:
Broad vertical commonality = NO
Strict vertical commonality = NO
Horizontal commonality = YES & NO

> So, that leaves us with: 2.25 YES's and .75 NO's

The third leg of the Howey test is “efforts” of others. "The investor must rely strongly on the efforts of others. The "others" in this test are talking about the efforts of the Promotors."

>(Again, can we assume that Prosper is the promotor of the Notes?)

The key determination is whether the promoters’ efforts, not that of the investors, form the “essential managerial efforts which affect the failure or success of the enterprise. -citing Unique Financial Concepts, 196 F.3d at 1201 (citing SEC v. Glenn W. Turner Enterprises, Inc., 474 F.2d 476, 482 (9th Cir.1973)). See also SEC v. Rubera, 350 F.3d 1084 (9th Cir. 2003) (test is whether the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise).

>Blah, Blah, Blah. DOES NOT APPLY. (These Notes rely on Personal Loan repayments seperate from any "efforts" of the Promotor or Investor)

> This leaves us with: 2.25 YES's and 1.75 NO's

Nest, we have to look at Reves v. Ernst & Young because this is the case the SEC told me to look at, and um, unlike someone we all know, I'm going to listen to the SEC!

In Reves v. Ernst & Young the court tried to deal with the issue of separating an "investment note" (which is a security) from a "commercial note" (which is not a security).

To do this the court came up with the “family resemblance” test.

Essentially this test is a look at the motivations of the parties.

First, is the motivation an "investment" or a "commercial finance arrangement"?

>With Prosper, we are not talking about Commercial Finance arrangements. Prosper isn't selling Notes to finance inventory or liquidate Accounts Receivables, etc. Thus, it's clearly an investment.

So count'em: 3.25 YES's and 1.75 NO's

Next, is the instrument meant to be traded? (Investment notes often have the ability to be traded, commercial notes almost never do.)

>Prosper Note buyers can not trade their Notes like a stock on some financial exchange.

That's 1 for the NO's: 3.25 YES's and 2.75 NO's

Next, ask, "what are the reasonable expectations of the public?" (would the financial world consider the note an investment note or a commercial note).

>The public here being "Lenders" or "Bidders" or anyone viewing a Prosper add. The general perception is that Prosper is a place to invest.

That's 1 for the YES's: 4.25 YES's and 2.75 NO's

Finally, ask, "Is there any other regulatory scheme better suited to deal with the instrument" (banking laws for example).

>This one is tough to answer, and I think it could go either way. We are, after all, talking about the selling and buying of Promissory Notes that rely on and originate as personal loans. I could be wrong on that point, but WebBank is funding/providing/making loans to individuals, and then "assigning" ie. selling the notes to Prosper, who is then assigning ie. selling the notes to other individuals. The notes are not touching any sort of financial exchange like stocks, bonds, and commodities do, so maybe banking laws would be better than securities regulations.

>Even if we give this one 100% to the NO's, Prosper Notes still fall short, in my layman's analysis, of NOT being considered a security. But, I say we split it down the middle and give .5 to each.

So, here you have it: we end up with:

4.75 YES's and 3.25 NO's

Prosper notes look more like securities, than not.

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