DocketNumber: Court of Appeals No. 13CA2090
Citation Numbers: 411 P.3d 851
Judges: Berger
Filed Date: 11/20/2014
Status: Precedential
Modified Date: 7/19/2022
*854¶ 1 This case requires us to address the rules that determine when an interest in a general partnership or joint venture constitutes a security under the Colorado Securities Act (Act).
¶ 2 The trial court also held that the measure of the venturers' business experience is their general business experience, not their experience in the specific business of the venture. We disagree and, like the United States Court of Appeals for the Tenth Circuit, hold that the proper measure of the venturers' experience is their collective experience in the business of the venture.
¶ 3 Accordingly, we vacate the trial court's judgment and remand for further proceedings.
I. Relevant Facts and Procedural History
¶ 4 Plaintiff, Gerald Rome, Acting Securities Commissioner for the State of Colorado (commissioner), appeals from a judgment dismissing his enforcement action against defendants, HEI Resources, Inc.; Charles Reed Cagle; Brandon Davis; Heartland Energy Development Corporation (HEDC); Bedrock Energy Development, Inc.; John Schiffner; and James Pollack.
¶ 5 HEI and HEDC have their principal places of business in Colorado. In 2009, the commissioner filed a complaint alleging that defendants violated the Act by using unlicensed sales representatives to offer and sell unregistered securities.
¶ 6 The allegations were based on defendants' formation and operation of several joint ventures in oil and gas exploration and drilling. To capitalize the ventures, defendants solicited individual investors by, in large part, cold-calling thousands of people across the country. Potential investors were solicited without regard to their experience or interest in oil and gas exploration.
¶ 7 If an individual contacted by telephone expressed interest in investing, defendants *855sent the prospect an information package that included a "Confidential Information Memorandum" (CIM) and a "Joint Venture Agreement" (JVA). The terms of the JVA provide for the formation of a joint venture, organized as a general partnership under the Texas Revised Partnership Act.
¶ 8 The JVA ostensibly gives the joint venturers various rights consistent with their status as general partners. The CIM designates either HEI or HEDC as the initial "managing venturer." The managing venturer manages the day-to-day operations of the joint venture and has the authority, subject to a vote of the venturers, to enter into contracts, acquire property, operate or retain operators to operate the venture's wells, and perform other functions on behalf of the venture.
¶ 9 Although the JVA gives the venturers authority to remove the managing venturer by majority vote and to vote on issues presented by the managing venturer, the commissioner alleged that any theoretical control the venturers collectively possess under the organizational documents is illusory. He alleged that the venturers instead are dependent upon the unique entrepreneurial or managerial abilities of HEI or HEDC and are unable to exercise meaningful partnership powers.
¶ 10 The commissioner thus contended that the substance of the transaction between the joint venturers and defendants is an investment contract under which the venturers invest money with the expectation that defendants' efforts will return a profit.
¶ 11 Both the commissioner and defendants filed various summary judgment and other dispositive motions. The trial court denied the commissioner's motions but granted defendants'. It held that the commissioner was collaterally estopped
¶ 12 The court also ruled on defendants' claim that, as a matter of law, the commissioner could not establish that the interests are securities under any of the three factors articulated in Williamson v. Tucker,
¶ 13 The first Williamson factor looks only at whether the partnership or joint venture agreements leave so little power in the hands of the partner or venturer that it renders the relationship between the parties tantamount to a limited partnership.
¶ 14 The second Williamson factor looks at the knowledge and experience of the partners or venturers.
¶ 15 Based upon the summary judgment orders, the court limited the commissioner at trial to attempting to prove that the interests are securities (1) solely under the second Williamson factor or (2) under other economic realities surrounding their offer and sale.
¶ 16 After a seven-day nonjury trial, the court ruled that the commissioner failed to establish that the joint venture interests are securities under the second Williamson factor or under any other "catch-all economic realities."
¶ 17 The commissioner appeals, arguing that the trial court erred in (1) applying a strong presumption that general partnership or joint venture interests are not securities and (2) concluding that the relevant experience of the venturers is their general business experience, rather than their specific experience in the industry of the venture.
II. When an Interest in a Business Organization is an Investment Contract
¶ 18 The Act, sections 11-51-101 to -198, C.R.S.2014, governs the offer and sale of securities. Only transactions that involve a "security" fall under the scope of the Act. A "security" is defined to include, among other things, an "investment contract." § 11-51201(17).
¶ 19 The Act does not define "investment contract." However, "insofar as the provisions and purposes of [the Act] parallel those of the federal enactments, such federal authorities are highly persuasive." Lowery v. Ford Hill Inv. Co.,
¶ 20 Under the Howey test, an "investment contract" is (1) "a contract, transaction or scheme whereby a person invests his money" (2) "in a common enterprise and" (3) "is led to expect profits solely from the efforts of the promoter or a third party." Howey,
¶ 21 In both federal and Colorado cases decided after Howey, the word "solely" in the third prong of the Howey test has not been construed literally; the "critical inquiry is instead 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." Long v. Schultz Cattle Co., Inc.,
¶ 22 Here, as in most cases, the first and second prongs of the Howey test are not in dispute. Williamson is the leading case interpreting the third prong of the Howey test when applied to general partnerships or joint ventures. Digital Interactive Assocs.,
¶ 23 Colorado courts likewise apply this "economic realities" approach: "[t]he question whether a particular transaction involves a security depends not on the name or form of the instrument, but on the substantive economic realities underlying the transaction." Griffin v. Jackson,
¶ 24 Williamson lists three circumstances in which interests in a general partnership or joint venture meet the third prong of the Howey test and thus may be a security:
[a] general partnership or joint venture interest can be designated a security if the investor can establish, for example, that (1) an agreement among the parties leaves so little power in the hands of the partner or venturer that the arrangement in fact distributes power as would a limited partnership; or (2) the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers; or (3) the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers.
¶ 25 This formulation was intended by the Williamson court to be a nonexhaustive illustration of when an interest denominated a general partnership interest is, in fact, an investment contract.
¶ 26 We review de novo the ultimate question of whether a general partnership or joint venture interest is a security. Viatica Mgmt.,
III. The Strong Presumption
A. Williamson 's "Heavy Burden"
¶ 27 In Williamson, the Fifth Circuit explained that due to the inherent nature of a general partnership, an investor usually "retains substantial control over his investment and an ability to protect himself from the managing partner or hired manager."
¶ 28 A later Fifth Circuit case applied Williamson 's three-factor test to determine whether a general partnership or joint venture interest is a security but additionally stated that, "[n]evertheless, a strong presumption remains that a general partnership or joint venture interest is not a security. A party seeking to prove the contrary must bear a heavy burden of proof." Youmans v. Simon,
B. The History of the Presumption in Colorado and Other Courts
1. Colorado Courts
¶ 29 No published appellate case in Colorado has expressly adopted or rejected the strong presumption that a general partnership or joint venture interest is not a security, although several cases from this court have discussed it. Mieka, ¶ 18. Williamson was first cited by this court in Digital Interactive Assocs., which adopted Williamson 's three-factor test and related analysis but did not mention the presumption.
¶ 30 Toothman, which addressed whether membership interests in a limited liability partnership (LLP) are securities, held that "the presumption that a general partnership interest is not a security, as set forth in Williamson v. Tucker ... is not applicable to an LLP interest in Colorado."
¶ 31 In Mieka, the defendants argued that the commissioner, in adopting the findings of fact and conclusions of law by the Colorado Division of Securities panel that had presided over the administrative hearing, erred when he expressly rejected the presumption. Mieka, ¶ 21. However, Mieka concluded the commissioner's refusal to apply the presumption was immaterial because the panel had not applied the presumption, the commissioner "adopted the [p]anel's conclusion that the Joint Venture interests were securities, and the [p]anel explained that its conclusion would have been the same if the presumption had applied." Id. at ¶¶ 22, 25. Accordingly, the issue of whether the presumption applies in Colorado was "not ripe for judicial resolution." Id. at ¶ 25.
¶ 32 It is therefore a matter of first impression in Colorado whether to apply the strong presumption that interests in joint ventures or general partnerships are not securities.
2. Other Courts
¶ 33 A number of opinions by federal and state courts have recognized, and some have adopted, the strong presumption that joint venture or general partnership interests are not securities. See Kenneth L. MacRitchie, General Partnerships and Similar Interests as "Securities" Under Federal and State Law,
¶ 34 Some United States courts of appeals have adopted the presumption along with Williamson 's three-factor test. E.g.,Sec. & Exch. Comm'n v. Shields,
*859Odom v. Slavik,
¶ 35 And at least one circuit, the Fourth, has inconsistently applied Williamson, initially adopting the presumption but not the entire three-factor test, Rivanna Trawlers Unltd. v. Thompson Trawlers, Inc.,
C. The Nature of Presumptions
¶ 36 "Presumptions are rules of convenience, based on experience or public policy, so certain in their character that when they are established by the presentation of certain underlying facts the effect is to create a prima facie case upon which judgment may be rendered in the absence of contrary evidence." Schenck v. Minolta Office Sys., Inc.,
¶ 37 In Colorado, in "all civil actions and proceedings not otherwise [specifically] provided for by statute or by [the Colorado Rules of Evidence]," presumptions are of this type:
a presumption imposes upon the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of non-persuasion, which remains throughout the trial upon the party on whom it was originally cast.
CRE 301.
¶ 38 CRE 301 does not explain in any given setting what factual showing must be made to overcome the presumption. Rather, "[t]he strength of a rebuttable presumption, absent case law or statutory prescription to the contrary, must be measured on a case by case basis in way of determining whether the weight of evidence contrary to the presumption has overcome it." Schenck,
¶ 39 Used improperly, presumptions defeat their basic purpose of simplifying the determination of certain legal issues. When a presumption does not advance its basic purpose, it is less than useless because it generates satellite litigation over the meaning and application of the presumption, instead *860of aiding the parties and the court in deciding the substantive issue before the court.
D. The Strong Presumption Should Not Apply in Colorado
¶ 40 For many reasons, we conclude that Colorado courts should not apply the strong presumption that a joint venture or general partnership interest is not a security.
¶ 41 First, applying a presumption that an interest in a business organization is not a security based solely on the putative form of organization is contrary to Colorado and federal law that requires courts to look at substantive economic realities, not form. See, e.g., United Hous. Found. Inc. v. Forman,
¶ 42 Second, no court has articulated the presumption in a manner that enables trial courts to reliably apply, and appellate courts to review the application of, the presumption. For instance, we do not know what strength the presumption has, or, put another way, what amount and weight of contrary evidence are necessary to overcome it. Courts that have applied the presumption have used different terms to describe its strength (for example, the presumption has been described as constituting a "difficult burden to overcome" in cases using the language of Williamson,
¶ 43 To illustrate, despite both of the comprehensive written orders by the trial court in this case, we cannot discern what weight the trial court gave to the presumption. For instance, in the summary judgment order, the court concluded that "[q]uite apart from collateral estoppel, ... as a matter of law there is nothing in the four corners of the [JVAs] that ... even come[s] close to overcoming the strong Williamson presumption." And in its findings of fact and conclusions of law, the court concluded that, after weighing the factors relevant to the economic realities underlying the transaction "against the strong presumption that joint venture interests are not securities ..., [the commissioner] has simply failed to carry [his] heavy burden of establishing that the ... interests are securities."
¶ 44 From these statements, we cannot determine how or in what manner, if at all, the presumption affected the findings of fact or conclusions of law made by the trial court, nor can we determine whether the court's decision would have been different if it had not applied the presumption. We also do not know how we, as an appellate court, should apply the presumption in reviewing the court's findings of fact and conclusions of law.
¶ 45 Third, the resolution of what weight a presumption has and whether it disappears upon presentation of sufficient rebuttal evidence depends on policy judgments that, in this context, we are ill-suited to make, and, if they are to be made, should be left to the General Assembly. See City of Pittsburgh v. Workers' Comp. Appeal Bd.,
¶ 46 It is one thing for a court to create presumptions in an area of the law that is governed by common law decisions of the courts; for example, much of the law of torts is based upon common law principles. There, it is entirely appropriate for courts to establish presumptions, such as the doctrine of res ipsa loquitur. See Manzi v. Montgomery Elevator Co.,
¶ 47 Fourth, and more fundamentally, we do not understand why the presumption is necessary at all. A general partnership interest is not a security unless the government, in an enforcement action, or a plaintiff in a private action under the securities acts, proves that it is a security. Without regard to the presumption, the burden of production and persuasion in establishing that such an interest is a security is assigned to the party claiming that it is. The presumption is thus wholly unnecessary to assign that burden of proof and persuasion to that party.
¶ 48 For these reasons, imagining what useful work the presumption accomplishes-unless it increases the burden of proof-is, at best, difficult.
¶ 49 For all of these reasons, we conclude that the strong presumption that a general partnership interest is not a security does not serve any valid purpose in adjudicating disputes such as this one, and we therefore reject it. We do so mindful of the General Assembly's declaration that "[t]he provisions of [the Act] ... shall be coordinated with the federal acts and statutes to which references are made in this article ... to the extent coordination is consistent with both the purposes and the provisions of this article." § 11-51101, C.R.S. 2014; see also Cagle v. Mathers Family Trust,
E. The Trial Court Applied the Strong Presumption
¶ 50 Because the trial court applied the strong presumption, we vacate the trial court's judgment and remand for reconsideration without the baggage of the strong presumption. Because the court applied the presumption in concluding that the joint venture interests are not securities under the third Williamson factor (in its summary judgment order) or the second Williamson factor or any other "catch-all economic realities" (in its findings of fact and conclusions of law), on remand, the court must redetermine whether the interests are securities under the second and third Williamson factors and any other economic realities.
¶ 51 Although the trial court also applied the presumption in concluding that the interests are not securities under the first Williamson factor, the court's collateral estoppel determination (in its summary judgment order) formed an independent basis for that conclusion. The commissioner does not argue on appeal that the collateral estoppel determination was erroneous. Thus, the remand does not encompass a redetermination of the first Williamson factor.
IV. The Relevant Experience of the Partners
¶ 52 In analyzing the second Williamson factor-whether "the partner or venturer is so inexperienced and unknowledgeable in *862business affairs that he is incapable of intelligently exercising his partnership or venture powers," Williamson,
¶ 53 The court thus concluded that because Cagle, ¶ 17, requires the Act to be coordinated with federal securities law, the appropriate standard in applying the experience and knowledge requirement in the second Williamson factor is whether the partners have general business experience, not experience in the business of the venture. The court found that, "as a whole," the venturers were "unquestionably knowledgeable and experienced in business affairs" and thus capable "of intelligently exercising their partnership powers." Based on that finding, the court concluded that the commissioner had failed to establish that the joint venture interests are securities under the second Williamson factor.
¶ 54 For several reasons, we reject the trial court's legal determination that the second Williamson factor addresses the general business experience of the partners.
¶ 55 First, it is far from clear that the "the overwhelming federal authority" prescribes inquiring into the general business experience of the partners, not their industry-specific experience. Apart from the Fourth and Ninth Circuits, which decided the cases the trial court relied on,
¶ 56 Even the Fifth Circuit, which decided Williamson, takes the view that Williamson "made clear that the knowledge inquiry must be tied to the nature of the underlying venture" and that "any holding to the contrary would be inconsistent with Howey itself." Long,
¶ 57 Second, we agree with those federal courts that hold that only an inquiry concerning the partners' venture-specific experience is faithful to Howey because "[r]egardless of investors' general business experience, where they are inexperienced in the particular business, they are likely to be relying solely on the efforts of the promoters to obtain their profits." Merch. Capital,
¶ 58 However, the requirement that investors have experience in the business of the venture does not mean that every partner need be an expert in every aspect of the business. Many legitimate general partnerships are comprised of partners with different talents and expertise in different areas that may be relevant to the particular venture.
*863See Hooper v. Yoder,
¶ 59 Because the trial court analyzed the general business experience of the venturers, not their collective experience in the business of the venture, on remand, the court must redetermine the second Williamson factor in relation to the venturers' industry-specific experience. The court must focus on the type of experience that would enable a venturer to make meaningful decisions on managing and operating the business of the venture-oil and gas exploration, drilling, and production.
V. Whether the Interests Are Securities as a Matter of Law
¶ 60 We reject the commissioner's invitation to decide, as a matter of law, that the joint venture interests are securities. The commissioner's argument conflates our role as an appellate court with that of the trial court. We do not find historical facts; for a number of very good reasons, that function is committed to the trial court. Because at least some of the facts that govern the determination of whether the interests are securities are disputed, it is necessary for us to remand for reconsideration in light of the legal rules we have prescribed here.
VI. Conclusion
¶ 61 The judgment is vacated and the case is remanded to the trial court for redetermination of whether the joint venture interests are securities under the second and third Williamson factors and any other "catch-all" economic realities, taking into consideration our rejection of the strong presumption that general partnership interests are not securities and our determination that the relevant measure of business experience is experience in the business of the venture. Although it appears that there is sufficient evidence in the record for the court to make these determinations without additional evidence, the court has discretion to permit the presentation of further evidence.
¶ 62 In making its factual findings and legal conclusions on remand, the court must apply the economic realities test and examine all relevant factors that show the substantive economic realities underlying the transaction, including but not limited to factors this court has discussed in prior opinions. See, e.g., Digital Interactive Assocs.,
JUDGE J. JONES and JUDGE MILLER concur.
For purposes of this opinion, there is no difference between a "general partnership" and "joint venture," and we use the terms interchangeably. Whether, under any circumstances, there may be a legal difference between the two is an issue we need not, and do not, decide here. See George E. Reeves, Partnership Status of Joint Ventures in Colorado,
The Colorado Supreme Court now refers to collateral estoppel as "issue preclusion." Farmers High Line Canal & Reservoir Co. v. City of Golden,
This determination was based on a 2002 cease-and-desist action brought against two defendants in this case by the Colorado Division of Securities, which claimed that an interest in one of the joint ventures at issue here was an unregistered security. A hearing panel of the Colorado Securities Board concluded that the Division did not meet its burden of proving that the interest was a security. Under his statutory authority, the commissioner affirmed the Board's determination and adopted this conclusion as the final administrative order. The trial court thus concluded that the argument that the joint venture interests are securities, based solely on the plain language of the JVAs, was litigated and finally resolved in that case and the commissioner was barred from making that argument in this case.
Other types of presumptions include a conclusive presumption, which many commentators and courts have noted is not a presumption at all but rather a substantive rule of law because if the fact giving rise to the presumption is proven, the party against whom the presumption operates may not dispute the existence of the fact contained in the presumption, which is thus deemed conclusively established. E.g., 2 McCormick on Evidence § 342 (Kenneth Broun et al. eds., 7th ed.2013).
It has been suggested that one possible benefit of the presumption is that it allows business organizers to be reasonably certain, at the inception of the business, whether they need to comply with the securities laws. However, as discussed above, the adoption of a mechanism to increase such certainty requires a policy judgment that is best left to the General Assembly, when, as here, the activity is heavily regulated by statute.
The Ninth Circuit has held that "the proper inquiry is whether the partners are inexperienced or unknowledgeable in business affairs generally." Holden v. Hagopian,