Recent decision by New York court on what is a security, subject to securities law is worrisome

Collectibles and Law column from the Aug. 18, 2014, issue of Coin World
By , Special to Coin World
Published : 08/04/14
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I have written frequently over the years about my view that coins, when sold in the normal retail manner, are not securities regulated by federal and state securities laws. A recent decision in New York, however, seems out of line on this issue and worries me.

To be regulated as a security, or “investment contract” to use the technical legal term, a transaction must satisfy the three-part test the U.S. Supreme Court established in 1946 in SEC v. W.J. Howey Co., namely “[1] an investment of money [2] in a common enterprise [3] with profits to come solely from the efforts of others.”

One appeals court ruling

Since Howey, only one federal appeals court has considered whether a retail coin sale meets that test, and it determined that the sale of bullion coins was not a security because investors’ profits came entirely from fluctuations in the world market that are out of the dealer’s control.

One district judge in the 1970s found that dealers who select the coins for the client and purport to “manage” clients’ investment accounts may be selling securities, but that decision predated recent evolutions in the definition of securities.

The current thinking among courts is that an investment is a security only when “narrow vertical commonality” exists between the investor and the seller, such that the investor’s fortunes are interdependent with the seller’s.

In Llewellyn v. North American Trading et al., a case I litigated, a New York federal judge found that rare coins retailed to investors by a telemarketer were not securities. The court emphasized that “Although defendants’ fortunes rose when plaintiff purchased the rare coins, the defendants would maintain their financial position even if plaintiff’s investment decreased in value.”

In other words, the dealer made a profit on the initial sale, but didn’t lose money if the customer’s coins later declined in value.

Typical sales transaction

So it seems pretty clear that the typical retail sales transaction would not be a security. Out of an abundance of caution I’ve advised clients not to offer buy-back guarantees, because doing so results in the customer “investing” in the dealer’s ability to fund the buy-back in the future.

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