Are Investment Notes “Securities” Under Federal Securities Laws?
In the recent decision of Shaper v. Zadek, Case No. 21-cv-00493-EMC, 2021 WL 3885958 (N.D. Cal. Aug., 31, 2021), the court addressed whether loans purchased by investors were “securities” under federal securities laws and, if so, whether the seller of the notes had violated federal securities laws by failing to, among other things, register as an investment adviser and/or broker-dealer. The answer is lawyerly and, perhaps, unsatisfactory, i.e., it depends! Where the notes were purchased for investment purposes, offered and sold to a broad segment of the population, reasonable investors would view them as securities and not merely notes, and there is no other statutory scheme directly regulating the transaction, they should be treated as “securities.” Nonetheless, additional considerations will determine whether the party offering the note must register as an investment adviser or broker-dealer under federal securities laws.Read More