September 09, 2015 Articles

Private Placement Securities Litigation

Be aware of the key rules and regulations governing this area of securities law

By Peter M. Saparoff, John F. Nucci, and Joel D. Rothman

The Securities Act of 1933, 15 U.S.C. §§ 77a et seq. (the Securities Act), defines a “security” as “any note, stock, treasury stock, security finance, security-based swap, bond, debenture . . . investment contract . . . or warrant or right to subscribe to or purchase, any of the foregoing.” Put more simply, a security is a certificate attesting to the right of ownership, in some way. Perhaps most relevant here is the term “investment contract.” In SEC v. W.J. Howey Co., 328 U.S. 293 (1946), the Supreme Court defined an investment contract as, essentially, an investment in a common enterprise, where the investor is led to expect a return of profits solely from the efforts of others.

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