Law Library

Securities Law and MLM - What's the Deal?


By Spencer M. Reese (1)

Overview
Ramifications of Being Classified as a Security
Legal Framework For Securities Regulation of MLMs
Practice Pointers

I. OVERVIEW

No one will claim that the application of securities law in the multilevel marketing field is anything new. Securities laws have been regularly applied to the MLM industry at both the state and federal levels since the early 1970s, and many MLM programs have been found to cross the line into the realm of unregistered securities since that time. In recent years there have been several high profile securities actions brought against MLMs. Most recently, the Securities and Exchange Commission (S.E.C.) brought an action against International Heritage, Inc. (IHI) in the United States District Court for the Northern District of Georgia (Case No. 1-98-CV-0803). Interestingly, IHI had been operating for several years, and was quite visible. Although the company had some difficulties with several state attorneys general, it had not had problems with the S.E.C. However, on March 6, 1998, IHI went public by entering into a reverse merger with Kara International, Inc. In March 1998, the S.E.C. filed for and received a temporary restraining order, an order freezing the company's assets, and an accounting, including lists of expenditures and payments to distributors. The following April the court entered a preliminary injunction that prohibited IHI from conducting business under its then-current marketing plan, and further ordered IHI to adopt a new compensation plan.

The company prepared a new plan and submitted it to the court. Although the court removed the injunction, it nevertheless expressed grave reservations about the new plan. However, the court stated that the implementation of the plan was critical to the determination whether it constituted a security, and since no evidence existed regarding how the plan was actually promoted in the field, the plan could not be deemed a security on its face. The S.E.C. claimed the new plan also constitutes a security, so they remained locked in battle with IHI until the burdens of the litigation ultimately forced the company out of business.

In a class action lawsuit brought by Nu Skin's Canadian distributors, the plaintiffs alleged that the Nu Skin program constituted the sale of a security. Capone v. Nu Skin (Case No. 93-C-0285-S, United States District Court for the District Of Utah). Nu Skin made a motion for summary judgment requesting that the court rule in its favor as a matter of law. The court denied the motion, finding that there was a basis upon which a jury could find that the Nu Skin program was a security. In March 1997 the court issued an order that contained language that is nothing short of frightening for those familiar with the MLM industry:

The court is of the view that a reasonable jury could conclude from the relevant evidence that plaintiff reasonably expected to receive significant profits from the efforts of others... . Indeed, it appears to the court that, in marketing this program, defendants place great emphasis on distributors duplicating themselves, receiving commissions from the sales of others, making big money from building a sales force, becoming financially independent and the like.

This language is frightening since the approach taken by Nu Skin, that distributors should duplicate themselves and hope to earn commissions on this duplication process, goes to the very foundation of every MLM compensation plan. If duplication of one's efforts were to be generally recognized as a basis for finding that a program constituted a security, as the above quote and language suggests, every MLM might as well only enroll registered securities brokers as distributors, because no one else would be able to participate in the compensation plans.

On March 26, 1998 the United States District Court for the Central District of Utah entered a final judgment of permanent injunction against Investors Dynamics Corporation (S.E.C. v. Investors Dynamics Corp., Case No. 2:96CV 0220 S). In arguing that the company's program was a pyramid, and thus also a security, the S.E.C. focused on the fact that 99% of the company's sales were made to its own distributors, and of the sales to those distributors, there were very few sales to retail customers.

With these recent decision one might think that there is a resurgence of regulatory and class action activity based on new developments in securities law. That, however, is not the situation. The rules of securities law that are applied to MLMs today have not gone through dramatic evolutionary changes. In fact, the same rules that were applied 25 years ago remain intact today.

Rather, there are several forces at work that result in the problem. First, the provisions of the securities laws that apply to MLMs are very complex and have been applied inconsistently by the courts. This has left MLMs in various states, ranging from confusion to absolute bewilderment, as far as the legality of their marketing plans are concerned. But the blame for securities actions against MLMs cannot rest entirely upon judicial contradiction and confusion over the correct application of the law. Numerous members of the MLM industry must shoulder a portion of the blame. The methods by which many companies have operated and promoted themselves have called for the application of the securities laws. Indeed, there is not a day that goes by that I do not receive an unsolicited fax from some fly-by-night operation that guarantees an income of $1,000.00 or more per week, with no selling required, no recruiting, no meetings, no inventory, no cold calling and no telephoning. Such operations are promoting nothing more than a passive investment (or more accurately, a "passive divestment," since any participant will soon lose all money invested). While there is no question that such programs violate the securities laws, legitimate companies are also pushing the envelope in an effort to make their programs "turn key" businesses that bring in profits but require as little effort as possible.

As a result of the efforts of many companies to offer "turn key" opportunities to their distributors, combined with the inconsistent application of the securities laws by the courts and regulators, it becomes apparent why, despite the long standing foundational principals of securities law, MLMs continue to be attacked as securities. It is therefore appropriate to explore the securities laws and examine how they are applied to MLMs, and to discuss ways that companies can operate their programs to avoid the pitfalls presented by the securities laws. We will therefore take a trip through "S.E.C.dom," starting with the ramifications of being classified as a security, identification of persons who can be held liable for violating the securities laws (this may surprise you), and a discussion of the various elements necessary to establish a violation of the securities laws. However, the most extensive discussion shall explore the issue of how an MLM can be classified as a security in the first place, since this is the proverbial $64.00 question.

II. RAMIFICATIONS OF BEING CLASSIFIED AS A SECURITY

Classification as a security is a death sentence for any MLM program. Securities are regulated at both the federal and state levels. At the federal level, they are regulated by the Securities Act of 1933 (the "Securities Act" 15 U.S. C. §77a et.seq.) and the Securities and Exchange Act of 1934 (the "Exchange Act" 15 U.S.C. §78a et seq.). At the state level they are regulated by state securities acts, which are known as "blue sky" laws. One of the key requirements common to all regulatory schemes is that securities must be registered with the S.E.C. at the federal level, (2) and with the various state securities departments at the state level.

Failure to Register Securities - Criminal and Civil Penalties

A federal conviction for failure to register securities is a fairly simple matter to establish since there are only three elements to prove: 1) no registration statement was in effect for the securities; 2) the defendant sold or offered to sell the securities; and 3) interstate transportation or communication or the mails were used in connection with the sale or offer of sale. (3) If an MLM program is classified as a security, there is little question that all three of these elements will be established since 1) no MLM would ever file a registration statement because, by conceding it was offering a security, only licensed securities brokers could enroll people into the program; (4) 2) every enrollment or attempted enrollment would constitute the sale or offer to sell a security; and 3) it is impossible to run an MLM without using some medium of interstate commerce, whether it be the mail or the telephone.

If convicted, the defendant can face serious penalties. Under the Securities Act, for example, a single violation carries up to a $10,000 fine and up to a five year prison sentence. (5) Criminal penalties can be equally onerous at the state level. In State of Nebraska v. Irons, (6) the defendant was convicted of operating a pyramid scheme called the "Friends Network." He was prosecuted and convicted of selling an unregistered security under the state's blue sky statute, and sentenced to one to three years in prison. On appeal his conviction and sentence were affirmed by the Nebraska Supreme Court.

Moreover, the S.E.C. or a state securities department can literally shut down a company. It is not uncommon to see court orders enjoining the defendant company from conducting business under its compensation plan, freezing the company's assets, placing the company into a receivership, suspending the trading of the company's stock (if it is publicly traded), and ordering that the company disgorge itself of all ill-gotten profits.

Persons Who May Be Prosecuted Under the Securities Laws

Any MLM company that violates the securities laws may unquestionably be prosecuted. This comes as no surprise to anyone. However, few independent MLM distributors have stopped to consider whether they can be held personally liable, either in a civil or criminal action, for violation of the securities laws. The Irons case illustrates the criminal penalties that can befall a distributor at the state level. But independent distributors must also recognize that they can be held personally liable for monetary damages in a civil action as well.

Under section 12(2) of the Securities Act of 1933 [15 U.S.C. §77I(2)], secondary liability can be imposed on distributors. Davis v. Avco Financial Services, Inc. (7) provides an excellent case study of a situation in which an independent distributor was held personally liable under the Securities Act. In Davis, the defendant Avco was a commercial lender. One of the defendant's managers was involved in the infamous Dare to be Great pyramid scheme. He made loans to customers to finance their participation in Dare to be Great, and also promoted the Dare program to others. The plaintiffs brought an action against Avco and the individual manager. In the claims pursued against the manager, the plaintiffs alleged that he violated section 12(2), which provides:

Civil liabilities arising in connection with prospectuses and communications. Any person who - (2) offers or sells a security, ..., by the use of any means or instruments of transportation or communication, ... , by means of a prospectus or oral communication, which includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements, ..., not misleading, ... , and who shall not sustain the burden of proof that he did not know, and in the exercise of reasonable care could not have known, of such untruth or omission, shall be liable to the person purchasing such security from him, who may sue either at law or in equity, ..., to recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of such security, or for damages if he no longer owns the security.

In deciding the circumstances under which this statute is properly applied to individuals who were secondary sellers of the security, the court adopted the "proximate cause" theory of liability. Pursuant to this approach, the court inquires whether the defendant's acts were both necessary to and a substantial factor in bringing about the sales transaction. (8) In applying this analysis, the court found that with regard to some of the witnesses, the activities of Avco's manager's "presence at meetings, his making speeches, his furnishing forms, and in general his contribution to the selling momentum" created a sufficient intrusion into the sales process that his activities could satisfy the proximate cause test. (9)

The court did, however, note that an individual could present a defense to §12(2) liability if they exercised "ordinary care" in their conduct. Considerations to establish the "ordinary care" defense are: "(1) the quantum of decisional (planning) and facilitative (promotional) participation, such as designing the deal and contacting and attempting to persuade potential purchasers, (2) access to source data against which the truth or falsity of representations can be tested, (3) relative skill in ferreting out the truth, ... (4) pecuniary interest in the completion of the transaction, and (5) the existence of a relationship of trust and confidence between the plaintiff and the alleged "seller." (10)

What is disturbing about the Avco and the Irons cases from a distributor's perspective is that both courts found scienter (the intent to violate the law) was not a necessary element for prosecution or liability. In each case the defendant claimed that he did not know that the program he was selling was a security. The courts nevertheless found that the absence of intent to violate the law was not a defense. On this point, the Irons decision highlights the harshness with which the law can be applied:

In this case, it is apparent that Irons was aware that he was offering or selling the right to participate in a multilevel chain distribution gifting program. The fact that he did not know that this participation was legally classified as a "security" indicates only that Irons did not act with specific intent or knowledge that he was violating the law. Knowledge by a defendant that the item sold is a security is not required in order to convict under the registration provisions of the Uniform Securities Act. There is no requirement that the defendant purposely intended to violate the law in order to be convicted. (11)

This is a stark reminder that ignorance is not bliss, and what a distributor does not know about his or her company can be dangerous to their livelihood.

Fraud in the Sale of Securities

Rarely will regulators attack a program based solely on the failure of the promoters to register the securities. Rather, it is common practice to raise fraud claims against the program promoters in conjunction with the registration claims. Regulators are well-armed when pursuing fraud claims because the anti-fraud provisions of the Securities Act and the Exchange Act, and of course, the infamous Rule 10b-5, are worded in extremely broad fashion. (12) The conduct most frequently cited as fraudulent in actions against MLMs in connection with the sale of a security is that the MLM is operating an illegal pyramid. The argument is that since a pyramid is destined to collapse, it is a material omission not to disclose to the participants that they will lose their investment when the pyramid fails. (13) Another common approach is to attack the income projections that are frequently extolled by MLMs. Under this scenario, the S.E.C. will claim that it is a deceptive practice to lead investors to believe that they can earn the represented income when in fact few, if any, ever actually achieve the stated income.

The application of the anti-fraud provisions of the securities laws to an MLM program is well illustrated in S.E.C. v. Galaxy Foods, Inc. (14) In that case, the court found that the defendant's marketing plan was a security (Galaxy was selling grocery store items). In applying the fraud provisions of the Securities Act, the Exchange Act, and Rule 10b-5, the court found a number of fraudulent acts and omissions that were attributable to Galaxy. Included among the list of fraudulent acts were: 1) the "fake it 'til you make it" approach (borrowing money to acquire expensive cars, clothes, etc., to lead prospects to believe the wealth was derived from the program); 2) the pervasive high pressure 'carnival-like atmosphere" at the company's sales meetings; 3) guaranteeing the prospect's investment; and 4) representing that the company would accumulate and distribute retail customers to distributors.

Significant omissions included the failure of Galaxy to disclose: 1) that Galaxy's management was receiving overrides totaling 18% of gross franchise sales; 2) some Galaxy executives had received franchises for "services;" 3) none of Galaxy's incorporators or key executives had any managerial experience in the retail food industry; and 4) no retail commissions were to be paid during the company's pilot program. (15)

The court further held that one of the company's principal distributors was individually liable for violation of the anti-fraud provisions. The distributor's sponsoring activities (which the court noted were particularly unscrupulous), were sufficient to render the distributor an aidor and abettor to the fraudulent conduct of Galaxy's operation. Moreover, the distributor was found to be individually liable because he had knowingly made false representations in the course of his recruiting activities. The court was careful to point out, however, that the distributor need not knowingly make misrepresentations. Rather, in an enforcement action, negligent misrepresentations are also sufficient. (16) As a result of the finding that the distributor had violated the anti-fraud provisions, the court ordered the distributor to disgorge himself of the profits he had made through participating in the program.

Scienter as an Element of a Fraud Action

While the Irons decision makes it abundantly clear that one can be held liable for failure to register securities even if the element of scienter is missing, this is not the case with all of the anti-fraud provisions of the law. With the exception of §§ 17(a)(2) and (a)(3) of the Securities Act, (17) in order for regulators or a private plaintiff to prove the violation of the fraud provisions of the law, they must first establish that the defendant intended to violate the act and that the misrepresentation was material. The Supreme Court has defined "scientier" under the securities laws as: "a mental state embracing intent to deceive, manipulate, or defraud." (18) Some Circuits have also adopted a "knowing misconduct or severe recklessness" standard. (19)

Although it is necessary to prove scienter, this is not an overwhelmingly difficult task. In IHI, the court found scienter proven because the program was similar to the Omnitrition program, which was the subject of scrutiny by the Ninth Circuit Court of Appeals in Webster v. Omnitrition International, Inc. (20) In the Omnitrition decision, the defendant company was sued by its distributors in a class action case. The plaintiffs pursued theories of securities and pyramid law violations. The district court (the trial court) had awarded summary judgment to Omnitrition on the securities and pyramid claims, but the Ninth Circuit reversed the district court on the grounds that facts existed from which a jury could find that Omnitrition had violated the securities and pyramid laws.

It is extremely troublesome that a court could find that a company acted recklessly because its program was similar to the Omnitrition program. This is troubling because the Ninth Circuit did not find that Omnitrition was a security or a pyramid. Rather, it simply said that facts existed from which a jury could potentially find that the program was a pyramid and a security. The Ninth Circuit remanded the case back to the district court to make the appropriate factual determinations. Amazingly, the IHI court found that the defendant had acted recklessly because its program was similar to another program that might be a pyramid. While the IHI court's analysis was flawed, it nevertheless represents an example of just how easily a court can find the existence of scienter.

When determining whether scienter exists, a company's actual business practices will be analyzed even if the company's written materials display an intent not to violate the law. In S.E.C. v. International Loan Network, Inc., (21) the defendant presented its written promotional materials that emphasized its penchant for fair dealing and conscientious business practices as evidence that it did not act with scienter. The court, however, rejected this evidence in favor of evidence of what the distributor force was actually presenting in the field:

Although defendants have not addressed materiality in either their brief or their oral argument, they have argued vigorously that there is no evidence of scienter. As the Court has already noted, ILN's Independent Representatives and Marketing Representatives have been repeatedly instructed not to make false statements or veer from the official written descriptions of ILN's programs. ILN has frequently sent memos to its marketing employees instructing them not to use unauthorized materials to try to promote ILN. This seems to the Court to almost prove too much. It is a valiant effort to create a paper trail showing defendants' efforts to comply with the law. The problem is that the paper trail is contradicted by oral statements of Ford and others and by ILN's history and stated goals. (22)

Material Misrepresentations

Finally, the misrepresentations or omissions made by a company must be "material" misrepresentations before they are actionable under the anti-fraud provisions of the securities laws. The test to determine if a misrepresentation or omission are "material" is whether a reasonable investor would consider the representation important in their decision to invest. (23) The easiest way for regulators to prove a material misrepresentation is again to argue that the MLM program is really a pyramid scheme. Since pyramids are destined to fail, it is certainly a "material" omission to fail to disclose that the program will collapse.

While the preceding analysis identifies the securities pitfalls that face MLMs and their participants, it does not address the critical questions of how does a program become classified as a security, and what can be done to avoid such classification. These questions present perplexing legal issues that the courts and attorneys for MLMs have wrestled with for years.

III. LEGAL FRAMEWORK FOR SECURITIES REGULATIONS FOR MLMs

There are three regulatory securities schemes that multilevel marketers must be aware of. At the federal level, the Securities Act of 1933 and the Securities Exchange Act of 1934 both supply a definition of the term "security" that the courts have interpreted to be sufficiently broad to include pyramid operations. At the state level, blue sky laws are similar to the federal acts. In addition, a limited number of state statutes and the Omnitrition decision specify that a pyramid or chain distribution scheme constitutes a security.

A. The Securities Act of 1933 and the Securities and Exchange Act of 1934

The starting point to determine if a program constitutes a security is, of course, the statutory definition of a security:

The term "security" means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a "security," or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.

15 U.S.C. §77b.(24)

Buried within the bowels of this monstrosity is the seemingly benign phrase "investment contract." Amazingly, these two words have generated thousands of pages of legal debate over what they mean. There are two principal tests used to determine if an "investment contract" exists. The prevailing test was shaped from two key United States Supreme Court decisions - S.E.C. v. W.J. Howey Co., (25) and United Housing Foundation, Inc. v. Forman. (26) This test (commonly known as the Howey test) is universally applied at the federal level, and is also applied by most state courts when addressing their respective blue sky laws. However, a minority of states apply the "risk capital" test. While the risk capital test represents a minority view, it is nevertheless sufficiently important that MLMs, and particularly start-up companies, must be aware of its operation and ramifications.

1. The Howey Test

The starting point in determining whether an MLM program constitutes an investment contract under the federal securities statutes begins with the test set forth by the United States Supreme Court in SEC v. W.J. Howey Co. The Howey Company owned a citrus orchard in Florida. Another company, Howey-in-the-Hills Service, Inc. operated a service company that cultivated and developed the orange groves and marketed the crops. Although separate entities, the two companies were under common control and management. The Howey Company sold half of its orchard acreage in small parcels to investors. Howey-in-the-Hills then sold service contracts to the investors pursuant to which the company would cultivate and market the crops. Although the investors were free to enter into a service contract with any provider they wished, 85% chose Howey-in-the-Hills to manage their affairs. When the crops were harvested, they were pooled and the profits were divided among the investors based on the amount of land they owned. Under these facts, the court held that this arrangement constituted an investment contract. To reach this conclusion, the court utilized the following test:

An investment contract is "a contract, transaction, or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party. ... It embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek to use the money of others on the promise of profits.(27)

Thus, a four part test has been developed: 1) an investment of money; 2) in a common enterprise; 3) the investor is led to expect profits; 4) the anticipated profits are to be derived from the efforts of someone other than the investor. The original verbiage of the Howey Court's holding provides that the investor's anticipated profits must come solely from the profits of others. However, the fourth element described immediately above varies from the original verbiage of the Howey Court's holding by removing the word "solely." Interpretation of the word "solely" generated considerable debate among the courts because it was recognized that a minimal amount of effort by the investor could cause a scheme to fall outside of the scope of the test. Therefore, the debate has ultimately lead to a majority rule that provides a more expansive application of the test than the literal definition would allow. In Securities and Exchange Commission v. Glenn W. Turner Enterprises, Inc.,(28) the Ninth Circuit Court of Appeals refined the fourth prong of the test by holding:

[w]e adopt a more realistic test, whether the efforts made by those other than the investor are the undeniably significant ones, those essentially managerial efforts which affect the failure or success of the enterprise.(29)

While the four part test is seemingly straightforward, the reality is that courts have wrestled with its application, and to this day, over fifty years since the Howey decision was issued, the various Circuit Courts of Appeals remain divided over its interpretation. As applied to the multilevel marketing industry, this has lead to inconsistent decisions. Therefore, a comprehensive analysis of the application of the component parts of the Howey test is necessary.

a. An Investment of Money

Courts distinguish between a "payment of money" and an "investment of money." A "payment of money" does not satisfy the first element of the Howey test, whereas an "investment of money" does. An "investment" carries with it the possibility of a gain or loss, but the purchase of a product or service is simply a sales transaction with no expectation of gain and no possibility of loss. Consequently, courts have held that "An investment of money occurs when an investor commits his money to an enterprise or venture in a manner that subjects himself to financial loss."(30) However, in the MLM industry, distinguishing between an investment and a purchase can sometimes be difficult.

Most astute companies do not require prospective distributors to make an investment before becoming eligible to participate in the company's compensation structure.(31) However, it is common for companies to require personal sales quotas (i.e., minimum P.V. or B.V. requirements) before a distributor is eligible for commissions. The personal sales quota is frequently satisfied by the distributor purchasing his or her quota and personally consuming it. Companies challenged with offering an unregistered security have argued that such purchases constitute the purchase of goods or services rather than an investment. The Howey decision addresses this point, holding that merely attaching a legitimate product or service to a program will not exempt it from the "investment of money" prong of the test. Similarly, even if income is "guaranteed," the program will not avoid the reach of Howey. On these points, the Court stated:

We reject the suggestion of the Circuit Court of Appeals, ..., that an investment contract is necessarily missing where the enterprise is not speculative or promotional in character and where the tangible interest which is sold has intrinsic value independent of the success of the enterprise as a whole. The test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others. If that test be satisfied, it is immaterial whether the enterprise is speculative or non-speculative or whether there is a sale of property with or without intrinsic value.(32)

More recent decisions have embraced the Howey Court's ruling that merely attaching a nominal product sale to a transaction will not avoid the scope of the first prong of the test. In SEC v. International Loan Network, Inc,(33) all distributors were required to purchase a $125.00 basic membership. The entire fee was retained by ILN. The member received benefits and services including discount shopping, discount travel and auto rental. A person could also join the $100, $500 and $1,000 clubs. By so doing, a member was also entitled to newsletters and seminars on money management and other topics. At the $500 and $1,000 levels, a person became eligible to participate in the company's property rights acquisition program, which offered real estate training courses.

Distributors would invite prospects to local ILN meetings. The president of ILN was the primary speaker. There were three bonus programs that were the center of the SEC's claim: 1) The Capital Fund Bonus System; 2) The Property Rights Acquisition Program; and 3) The Maximum Consideration Program. Under the Capital Fund Bonus System, for each new member recruited, a distributor would receive 50% of the new member's $100, $500 or $1,000 fee. Membership fees were paid down 5 levels. The company promoted stacking by teaching people to come in, and then enroll their wife and kids. Under the Property Rights Program, investors were told that for $1,000 investment, they would receive the option of $10,000 in real property or $5,000 in cash. Prospects were told there was no recruiting necessary, and distributors flashed their checks during the recruitment process.

Under the Maximum Consideration Plan, a person must have achieved $3,000 in the Property Rights Acquisition Program and must have placed an earnest money deposit on an agreement to purchase real estate other than that for use as a personal residence. The top 10 producers of PRA sales were guaranteed a minimum award of $5,000. Others were eligible for awards up to five times their original PRA purchase price or real estate contract deposit.

Although the program was crafted so that there was technically no investment of money necessary, in reality the investment element was satisfied because the way the program worked in actual practice was to emphasize recruiting new distributors to become members:

Defendants have carefully crafted the Capital Fund program so that it does not fit the Howey test precisely. The Independent Representative Agreement that must be signed to participate in the program specifically states that one need not be an ILN member in order to earn money through the program. If one need not be an ILN member, then the program does not fit the first prong of the Howey test, requiring an "investment of money." To the Court, the distinction is merely technical and appears to be a deliberate attempt to avoid the application of the test. A reading of the transcript of Melvin Ford's presentation at a recent President's Night, as well as the testimony of those who have repeatedly heard him speak, makes it clear that the intent is for a person to become a member first and then recruit new members. Thus, the oft-repeated slogan, "you come in, then bring in your wife and your kids." Looking to the substance, rather than the form, of the Capital Fund program, this Court holds that the first prong of the Howey test has been met.(34)

dditionally, it is probable that many people are unaware that they can participate in the Capital Fund Bonus System without first becoming an ILN member. The Independent Representative Agreement is four pages long and contains 33 lengthy provisions in relatively small type. The provisions stating that one need not be an ILN member to be an Independent Representative is buried amongst these other provisions.(35)

This position is also reflected in the Utah federal court's 1997 memorandum decision in the class action case Capone v. NuSkin. In response to NuSkin's motion for summary judgment, the Plaintiffs argued that the investment prong of the Howey test could be satisfied by de facto mandatory purchases of products and sales materials, and through their expenditure of time in promoting NuSkin. The court found that although product purchases were not mandatory by design, there was sufficient evidence presented that a jury could conclude that product purchases were nevertheless a prerequisite to meaningful participation in the compensation plan:

Plaintiff claims and the record suggests, that in order to effectively and meaningfully participate in the Nu Skin marketing plan, it is necessary to purchase products every month in order to meet the personal volume and group volume requirements. ... Moreover, there is evidence which suggests that commissions are paid regardless of whether the distributors actually retail the products they purchase. Distributors must also pay a renewal fee of $24.00 (Canadian) each year.(36)

The message to take from these decisions is clear and unambiguous; an effort to avoid the first prong of the Howey test by attaching a nominal product to the investment will not render the transaction a "sale" rather than an "investment." In addition, if the products are legitimate, making product purchases mandatory will also cause the program to satisfy the first prong of the Howey test, as the courts will also view such purchases as an investment. It is therefore important that any product purchases be optional. However, even "optional" purchases will satisfy the first prong of the Howey test unless the company is able to present evidence that such purchases are truly optional. If, despite what is printed in a company's literature, the reality is that distributors must personally purchase products to participate in the compensation plan, the first prong will be satisfied. To combat such a finding, the most compelling evidence a company can present is statistical data establishing that a significant portion of their distributors do not make personal purchases on a regular basis, yet still earn commissions.

Finally, although the Howey decision specifies that an investment of money is required, the S.E.C. has attempted to boaden the Howey test by arguing that an investment of a distributor's time and personal effort will satisfy the first element of the test. This was the approach taken by the SEC in the IHI case. The SEC relied on SEC v. Addison,(37) to support its argument that the "investment" component of the investment contract test was satisfied under the modified plan because IHI distributors were required to invest their time and services. The court did not state whether an investment in services was sufficient to satisfy the "investment" requirement, although it did cite Peyton v. Morrow Electronics, Inc.(38) as a basis for finding that services did not satisfy the "investment of money" element. Rather, the court differentiated the Addison case from the modified IHI plan by finding that distributors under the amended IHI plan, distributors did not expect profits from the managerial efforts of others, whereas in Addison the investors did in fact anticipate profits based on the managerial efforts of others. Consequently, in the MLM context, whether an investment of time and effort will satisfy the first element of the Howey test remains open. However, we must anticipate that a court would weigh heavily in favor of following the precise verbiage of the Howey test and find that an investment of money is essential.

b. A Common Enterprise

The second element of the Howey test requires that a "common enterprise" exist between the promoter and the investor. This element of the test has, without question, proven to be the most perplexing to securities practitioners and courts alike. This is due to the fact that the Circuit Courts of Appeals are divided on what constitutes a "common enterprise," and amazingly, over 50 years after the Howey decision, the Supreme Court has not directly addressed the issue to bring uniformity to the law. This division creates a substantial dilemma for MLM companies because acceptable conduct in one jurisdiction presents an extreme risk in another. It is therefore incumbent upon companies to devise compensation plans that take complete advantage of the more stringent approaches taken, and to incorporate procedures that mitigate the potential for establishing commonality in those jurisdictions that utilize more liberal approaches.

A common enterprise exists if there is "commonality" between the promoter and investor. There are three principal approaches to determining if a commonality exists: 1) horizontal commonality; 2) strict vertical commonality; and 3) broad vertical commonality. To further compound the confusion, courts have not been uniform in interpreting what conduct constitutes strict and broad vertical commonality. The final result is that if a company wants to operate its program in a way that minimizes its exposure to being classified as a security, it must conduct a comprehensive review of each of the commonality approaches.

i. Horizontal Commonality

Horizontal commonality requires a pooling of monies from various investors and a pro rata sharing of profits from the pool.(39) A recent decision from the West Virginia District Court, U.S. v. Holzclaw,(40) illustrates the operation of the horizontal commonality test in an pyramid case. In a criminal action, the Defendants were allegedly selling an investment contract pursuant to a multilevel sales program that sold gold certificates.

The Court, citing Mordaunt v. Incomco,(41) noted that the Circuit Courts of Appeals were split on what constitutes a common enterprise. The court first defined the scope of horizontal, strict, and broad vertical commonality. In conducting this exercise, the court noted that strict vertical commonality existed under the facts of the case. However, the court rejected this approach, and instead, relying on Marine Bank v. Weaver,(42) applied the horizontal commonality test, holding:

[a] common enterprise exists only when the transaction contemplates a multiplicity of investors contemporaneously holding equipotential interests in the enterprise. This standard requires and encompasses transactions with horizontal commonality. It follows, and the Court FINDS, that the pyramid scheme in this case does not include an investment in a "common enterprise" as required by Howey.(43)

An MLM attacked as a security stands the greatest chance of overcoming a securities claim if the case is brought in a jurisdiction that applies the horizontal commonality approach. While it is arguable that if distributors are required to purchase products on a monthly basis, their payments constitute a pooling of assets. However, the distribution of profits from the pool will not be on a pro-rata basis. Rather those individuals who have built a larger sales organization and moved more product will be entitled to a larger share of the profits. Those individuals that were less successful in building a business and moving product will receive a smaller portion of the profits, although their product purchases will equal that of their more successful colleagues. Because of this discrepancy, no pro rata distribution of profits exists, and the horizontal commonality test will not be satisfied.

Similarly, it is common for compensation plans to include "bonus pools" that are awarded to their most productive distributors. While it is again arguable that the funds from which the bonuses are paid constitute a "pool," the horizontal commonality test again is not satisfied because: 1) the funds are distributed to a limited number of distributors rather than to all distributors on a pro-rata basis; 2) payments are determined by each distributor's individual and group productivity rather than on each individual's contribution to the pool; and 3) the "bonus pools" are based on a percentage of the company's total pre-tax sales volume (i.e., a bonus pool may be comprised of 1% of the company's total BV for the year). Since the bonus is a pre-tax expense for the company, it is not sharing its profits with the distributors. Rather, the pool is a legitimate expense item for the company.

A word of caution, however, is necessary. Sometimes compensation plans are structured such that distributors can enter the program at higher ranks (levels of participation) depending on the amount of their initial purchase. For example, if a distributor can enter a program and qualify for commissions at the "diamond" level by making an initial purchase of $200.00, but can also enter and automatically qualify for higher commissions at the "double diamond" level by making an initial purchase of $500.00, a court may find this scenario to satisfy the horizontal commonality test. The mandatory purchase would constitute a pooling of assets, and the entitlement to higher commissions based on the higher initial investment would constitute a pro rata payment of profits. It is therefore prudent to avoid designing a compensation plan that offers distributors the opportunity to enter a program at higher commission levels by making a greater initial purchase. Rather, all distributors should be required to enter the program at the same level and with the same qualifications. Advancement in rank, and entitlement to greater commissions, should be based exclusively on productivity.

ii. Strict (Narrow) Vertical Commonality

Under a true strict vertical commonality analysis, the requisite commonality will be found to exist only if the profits and losses of the investors and the promoter are directly tied to one another. That is, the profits of the parties rise and fall together. Brodt v. Bache & Co.(44) In Brodt, the plaintiff set up a discretionary trading account with the defendant brokerage house. Pursuant to this arrangement, the brokerage house could withdraw and invest funds from the plaintiff's account at its discretion. The plaintiffs lost all of their money, and sued Bache & Co. claiming that the discretionary trading account constituted an investment contract. The Ninth Circuit Court of Appeals found that the transaction was not an investment contract because neither horizontal nor vertical commonality existed. Under the vertical commonality analysis, the court reasoned that commonality was absent because the profits of the investor and the promoter did not rise and fall together.

"... the success or failure of Bache as a brokerage house does not correlate with individual investor profit or loss. On the contrary, Bache could reap large commissions for itself and be characterized as successful, while the individual accounts could be wiped out. Here, strong efforts by Bache will not guarantee a return nor will Bache's success necessarily mean a corresponding success for Brodt. Weak efforts or failure by Bache will deprive Brodt of potential gains but will not necessarily mean that he will suffer serious losses. Thus, since there is no direct correlation on either the success or failure side, we hold that there is no common enterprise between Bache and Brodt.(45)

V.C. will not exist if a pure strict vertical commonality test is applied to an MLM. This is due to the fact that each individual distributor's profits are independent from those of the MLM company. For example, a distributor may be unsuccessful in his or her sales and recruitment efforts, and ultimately realize a net loss after business expenses are taken into account. The company, however, could very easily turn a profit during the same time period. Similarly, a company may have a down year, whereas individual distributors may find that despite the company's problems, they generate a profit. In either scenario, the profits and losses of the distributors and the investors do not rise and fall in sync with one another, so true strict vertical commonality will not exist.

To make things a bit more complicated however, there is a hybrid strict vertical commonality test. Under this test, commonality will exist if the investors' and promoter's profits fluctuate together, but unlike a pure strict vertical commonality test, it is not necessary that their losses be similarly linked.(46) As applied to MLMs, the infamous SEC v. Glenn W. Turner Enterprises, Inc.(47) decision illustrates that application of this hybrid strict vertical approach. Therein, the court stated that "A common enterprise is one in which the fortunes of the investor are interwoven with and dependent upon the efforts and success of those seeking the investment or of third parties."(48) The subtle distinction between this approach versus that taken in Brodt is that the Turner decision does not provide that the investor's failure must fluctuate with that of the promoter. Consequently, the distributors' risk of loss is independent of that of the company.

The hybrid strict vertical commonality approach is more difficult for an MLM to overcome than a pure vertical commonality test. Generally, if a company's sales force is successful, the company will also be successful. After all, this is what everyone strives for. However, to best overcome an hybrid strict vertical commonality challenge, the company must show that it has incurred losses during the same time frame during which distributors were profitable. If a company cannot make such a showing, it may attempt to prove that the two do not fluctuate with one another by introducing evidence that the company's profit margins differ from the profit margins of the distributors during the relevant time frame. The greater the discrepancy, the stronger the argument that the test is not satisfied.

iii. Broad Vertical Commonality

The "broad vertical commonality" approach is the third method used to determine if a common enterprise exists. This test is the most difficult to overcome, but it is also the most controversial. Despite the criticism that has been leveled, it remains an accepted approach in the Fifth Circuit.

Under the broad vertical commonality, a common enterprise will be established if the fortunes of all investors are tied to the efforts. As fortunes would have it, one of the leading cases applying the broad vertical commonality test is also an MLM case. In S.E.C. v. Koscot Interplanetary, Inc.,(49) the distributors did not engage in sales and recruiting efforts. Rather, they simply gathered what amounted to "warm bodies" and brought them to "opportunity meetings." Once the prospects were at the meetings, company employees would conduct the meeting and perform the sales and enrollment functions. Thus, all distributors had to do was show up at the meetings with their prospects, and, of course, purchase excessive quantities of merchandise each month. Against these facts the court held: "The requisite commonality is evidenced by the fact that the fortunes of all investors are inextricably tied to the efficacy of the Koscot meetings and guidelines on recruiting prospects and consummating a sale."(50)

This test is the most difficult to overcome because it is not tied to any quantifiable figures such as profits and losses. Rather, it is dependent upon a broader concept of the efficacy of the promoter's efforts. Determination of whether distributors' efforts are tied to the efficacy of the promoter's efforts will entail a fact intensive inquiry. However, for obvious marketing reasons, most MLM companies promote their programs in a fashion that emphasizes how much the company does for the distributors, and how little the distributors are required to do. The company's own literature provides ample evidence that their management and operation of the enterprise will ensure the distributors' success. While this is a very logical approach from a marketing perspective, from a legal perspective it is problematic because it makes it easy for a regulator to prove that the distributors' efforts are dependent upon the efficacy of the MLM company's marketing efforts.

An MLM case that illustrates the application of both the strict and broad vertical commonality approaches is SEC v. International Loan Network, Inc.(51) In that case, the court found that distributors were taught to enroll in the program themselves, and then to rapidly build their downline organization by enrolling their spouse and children (a practice commonly known in the industry as "stacking"). Strict vertical commonality existed because distributors' success was based on their downline members' stacking practices rather than on legitimate sales and recruitment efforts in which the upline distributors participated. (I suspect there was also a significant number of dogs, cats and goldfish that somehow acquired tax I.D. numbers and were also enrolled). The court also found that broad vertical commonality existed because the company's promotional materials emphasized the success of the organization as a point of reliance for prospective distributors. On the strict and broad vertical commonality issues, the court held:

The profits of investors in the Capital Funds Bonus System are directly related to the fortunes of other investors; it is through the constant recruitment of new members in one's 'downline' that income is earned. If the people directly recruited by an Independent Representative do not vigilantly spread the word, "you come in, then you bring in your wife and your kids," then that Independent Representative will not earn much income through the program. Additionally, investors' profits are linked to the success or failure of ILN as a whole because it is the ability to proclaim the organization's success that is the central selling point of the program.(52)

The broad vertical commonality approach has received extensive criticism from the courts in jurisdictions that do not follow it. The problem lies in the fact that there is no real difference between the broad vertical commonality test and the fourth prong of the Howey test (i.e., the investor anticipates profits based on the efforts of others). If the broad vertical commonality test is applied, there is no reason to apply the fourth prong of Howey because the result will always be the same. Had the Supreme Court in Howey intended broad vertical commonality to satisfy the common enterprise element of the test, the Court would not have added the fourth element of the test. In fact, this point is illustrated by the International Loan Network case because the court relied on the same evidence to find that the second and fourth prongs of the Howey test were satisfied.

In Long v. Shultz Cattle Company, Inc.,(53) the Fifth Circuit Court of Appeals acknowledged the criticism leveled against the broad vertical commonality approach. The court noted that the case did not present proper facts that would enable it to consider formally rejecting the broad vertical commonality test because the program at issue satisfied the commonality requirement no matter which test was applied. However, the court did state that it would consider taking a fresh look at the issue in a case that presented appropriate facts .(54) This is extremely significant to the MLM industry because it was the Fifth Circuit that issued the Koscot decision.

In Revak v. SEC Realty Corp.,(55) the Second Circuit succinctly pointed out the deficiencies of the broad vertical commonality approach. The court rejected the approach because it merges the second and fourth prongs of the Howey test into a single test:

If a common enterprise can be established by the mere showing that the fortunes of investors are tied to the efforts of the promoter, two separate questions posed by Howey - whether a common enterprise exists and whether the investors' profits are to be derived solely from the efforts of others - are effectively merged into a single inquiry: "whether the fortuity of the investments collectively is essentially dependent upon promoter expertise.(56)

Despite the criticism leveled at the broad vertical commonality test, it nevertheless presents significant problems for the MLM industry. This is largely attributable to the Koscot decision because it involved a company utilizing a multilevel compensation plan. Unfortunately, courts are oftentimes unwilling to inquire into the differences between the Koscot program and the MLMs they find in their courtrooms. Rather, it is tempting for courts to take the easy approach and pigeon-hole all MLMs in the same category as Koscot, and therefore apply the same commonality test.

c. The Investor is Lead to Anticipate Profits

The third prong of the Howey test requires that the investor be lead to anticipate "profits." However, a debate similar to that concerning the term "investment" has arisen. Indeed, the issue is quite similar since the question may arise whether an investor is simply purchasing a commodity for personal use, or if he is purchasing a commodity with the anticipation of making a profit on its purchase. This dilemma is illustrated by the facts in United Housing Foundation, Inc. v. Forman,(57) Therein, the plaintiffs were residents of a low income housing cooperative in New York City. To occupy one of the housing units, residents were required to purchase shares of what was loosely called "stock." When rents were increased due to cost overruns on the housing project, a group of plaintiffs sued the housing foundation claiming that the "stock" they purchased constituted an investment contract security. The court was required to determine if the residents were purchasing a home to live in, and thus a commodity, or if they were purchasing an apartment for investment purposes, and therefore a security. The court phrased the issue as follows:

By profits, the Court has meant either capital appreciation resulting from the development of the initial investment, ..., or a participation in earnings resulting from the use of investors' funds, ... . In such cases the investor is "attracted solely by the prospects of a return" on his investment. Howey, supra, at 300. By contrast, when a purchaser is motivated by a desire to use or consume the item purchased - "to occupy the land or to develop it themselves," as the Howey Court put it, - the securities laws do not apply.(58)

The Court found that under the facts as presented in the case, the purchasers of the apartment units had intended to purchase a home for residential purposes rather than for purposes of receiving a profit:

There is no doubt that purchasers in this housing cooperative sought to obtain a decent home at an attractive price. But that type of economic interest characterizes every form of commercial dealing. What distinguishes a security transaction - and what is absent here - is an investment where one parts with his money in the hope of receiving profits from the efforts of others, and not where he purchases a commodity for personal consumption or living quarters for personal use.(59)

This decision would find great favor among the multilevel marketing industry if the Court had left its holding in these terms. However, the Court was careful to point out that in some situations the purchase of a commodity may also be a purchase for investment purposes: "In some transactions the investor is offered both a commodity or real estate for use and an expectation of profits. ... The application of the federal securities laws to these transactions may raise difficult questions that are not present in this case."(60)

While the Supreme Court did not address this point, lower courts in MLM cases have not been so hesitant. In Bell v. Health-Mor, Inc, .(61) the company was selling vacuum cleaners door-to-door. The defendants argued that the distributors' purchase of the machines was the purchase of a product, whereas the plaintiffs argued they were investments. The court rejected the defendant's argument, holding:

Finally, the mere transfer of a tangible commodity does not preclude the existence of a security. For example, in S.E.C. v. Glenn Turner Enterprises, ..., the purchasers in the pyramid scheme received course materials such as cassettes and books. Yet, this did not prevent the recruitment aspects of the program from being held to be securities. Plaintiffs in this case claim that, in addition to a vacuum cleaner, they were buying an income opportunity, the right to supply names of other prospective "purchasers" for lucrative profits. As Koscot and Glenn Turner Enterprises teach, that income opportunity can be considered independently of any sale of a product or service which might have been made.(62)

Similarly, in People v. Cooper,(63) the Michigan Court of Appeals analyzed a program in which a participant was required to purchase $20.00 of skin lotion each month, whether they needed it or not, in order to remain active in the company's compensation plan. Recruits were told that it was only necessary to sponsor new participants on their second level, and that the company would do the rest. The prosecution claimed that the defendants were operating a pyramid and offering an investment contract. The Defendants argued that their marketing plan was legal because bonuses were based on sales of product. The court, however, found that the lotion was a mere token, and the primary focus of the plan was the recruitment of new members.

In analyzing these cases, it becomes clear that if an MLM requires its distributors to purchase a specific quota of merchandise, the likelihood that the company will prevail on a defense that the distributors are purchasing a commodity rather than making an investment is substantially eroded. This is particularly true as the amount of the required purchase increases. If, on the other hand, there is no mandatory purchase requirement, and distributors purchase modest quantities of merchandise for personal use, there is a compelling argument that distributors are purchasing the products with the intent of purchasing a commodity. This position will be further buttressed if the company can present strong testimonial evidence from its distributor/customers that the purchases were not made with the expectation of making a profit from the sale.

d. The Investor Anticipates Profits Based on the Efforts of Others

The fourth prong of the Howey test requires a finding that the investors anticipate profits based on the efforts of others. When studying court decisions relating to investment contracts, it quickly becomes apparent that this element is the most carefully scrutinized prong of the analysis. In fact, in MLM cases it is not unusual for a court to skip or gloss over the first three elements of the test and focus its attention on the fourth element. Consequently, it is of utmost importance that MLMs carefully design and implement their compensation and marketing plans to avoid leading distributors to anticipate profits based on the efforts of others. While this may seem antithetical to the fundamental premise of MLM, which is to earn a profit based on your downline's sales, careful planning and marketing will enable a company is to wend its way through the morass of confusion. Fortunately, history is our best teacher, and there is no shortage of MLM decisions addressing the fourth prong of Howey. In addition, since the inquiry will necessarily be fact specific, a review of the facts of several key securities cases will shed light on the manner in which the courts apply the fourth prong of Howey.

S.E.C. v. Glenn W. Turner Enterprises, Inc..(64)

The launching point for a discussion on the fourth prong of the Howey test must begin with a comprehensive analysis of S.E.C. v. Glenn W. Turner Enterprises, Inc. This decision, which happened to involve an MLM, is critically important because it was the decision that moved the courts away from focusing on the literal language of the Howey court's requirement that an investor anticipate profits solely as a result of the efforts of others. The Glenn Turner decision is the leading case implementing a more flexible analytical approach that directs the inquiry into the nature and scope of the efforts of the promoter or other third party to ascertain if those efforts are the essential managerial efforts necessary to make the program successful.

Turner operated the infamous Dare to Be Great program. Distributors would bring recruits to company run functions. The company would put on a real hype-show, complete with the hard-sell, trying to get recruits to join the program and buy extremely expensive self-motivation courses. They would flash large sums of cash, drive expensive cars and park them conspicuously in front of the building, and chant money hymns. Company speakers would tell of the riches that awaited those who enrolled in the program. Although the "sale" (the enrollment) was occasionally closed by a distributor, it was usually closed by company employees who were specialists in the hard sell. Although no express guarantees of success were made, and it was stated that the purchaser must expect to work, the impression left with prospects was that of "near inevitability of success to be achieved by anyone who purchases a plan and follows Dare's instructions."(65)

Faced with these facts, the Ninth Circuit had little difficulty finding that the program constituted an investment contract.(66) While the defendants argued that the distributor's efforts of gathering prospects to attend the meetings defeated the SEC's claim because the effort put forth was not "solely" that of the company, the court nevertheless held that the third prong of the Howey test was satisfied:

The statutory policy of affording broad protection to the public, and the Supreme Court's admonitions that the definition of securities should be a flexible one, the word "solely" should not be read as a strict or literal limitation on the definition of an investment contract, but rather must be construed realistically, so as to include within the definition those schemes which involve in substance, if not form, securities. ...

Strict interpretation of the requirement that profits to be earned must come "solely" from the efforts of others has been subject to criticism. ... Adherence to such an interpretation could result in a mechanical, unduly restrictive view of what is and what is not an investment contract. It would be easy to evade by adding a requirement that the buyer contribute a modicum of effort. Thus the fact that the investors here were required to exert some efforts if a return were to be achieved should not automatically preclude a finding that the Plan or Adventure is an investment contract. To do so would not serve the purpose of the legislation. Rather we adopt a more realistic test, 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.(67)

The definition of the "essential managerial efforts" is of critical importance. The court held:

What [the investor] buys is a share in the proceeds of the selling efforts of Dare. Those efforts are the sine qua non of the scheme; those efforts are what keeps it going; those efforts are what produced the money which is to make him rich. In essence, it is the right to share in the proceeds of those efforts that he buys.(68)

United Housing Foundation v. Forman

The Supreme Court has also deemed it appropriate to amend the provision of the Howey test which requires that the investor anticipate profits solely from the efforts of others. In United Housing Foundation v. Forman, the Court refined the Howey test in a manner that more closely reflects the approach initiated by the Ninth Circuit in Glenn W. Turner:

The touchstone [of an investment contract] is the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others... (69)

By modifying the Howey test in this fashion, the Supreme Court focused on the quality of the efforts of others, and effectively read the word "solely" out of the Howey test.

SEC v. Koscot Interplanetary, Inc.(70)

One year after the Glenn W. Turner decision was issued by the Ninth Circuit, the Fifth Circuit handed down its ruling in SEC v. Koscot Interplanetary, Inc. Like Dare to Be Great, Koscot was also a program run by Glenn W. Turner Enterprises. Although it sold cosmetics rather than "Adventures," it followed a similar pattern of hype and high pressure. Under the Koscot program however, the distributors played a greater role in closing the sale to the prospect than did distributors in the Dare to Be Great program. The court nevertheless found this to be a ministerial function that did not overcome the fourth prong of the Howey test:

The act of consummating a sale is essentially a ministerial not managerial one, ... , one which does not alter the fact that the critical determinant of the success of the Koscot Enterprise lies with the luring effect of the opportunity meetings. ... [I]nvestors are cautioned to employ the 'curiosity approach' in attracting prospects. Once attendance is siecured, the sales format devised by Koscot is thrust upon the prospect. An investor's sole contribution in following the script is a nominal one. Without the scenario created by the Opportunity Meetings and Go-Tours, an investor would invariably be powerless to realize any return on his investment.(71)

As guidance for legitimate companies, the court provided: "[W]e acknowledge that a conventional franchise arrangement, wherein the promoter exercises merely remote control over an enterprise and the investor operates largely unfettered by promoter mandates presents a different question than the one posed herein. But the Koscot scheme does not qualify as a conventional franchising arrangement."(72)

SEC v. International Loan Network, Inc.(73)

The court in SEC v. International Loan Network, Inc., again found that the "efforts of others" prong of Howey was satisfied because the company promoted and allowed its distributors to engage in stacking:

Without a doubt, to earn money through the Capital Fund program requires some effort on the part of the investor. If an investor does not recruit a single new ILN member, that person will receive absolutely no income through the program. However, only a minimal effort is needed in order to earn substantial income through the program. As Melvin Ford repeatedly says: "you come in, then you bring in your wife and your kids." If each of them recruits one person, who recruits one person, who recruits one person, an investor will already have a five-level "downline." Moreover, to be credited with recruiting a new member may involve as little as inviting someone to an ILN meeting or President's Night. If the ILN marketing representatives or Melvin Ford himself are successful in persuading the potential recruit to join, the person who extended the invitation, otherwise known as the "sponsor," will be credited as having made the recruitment and will earn income from it.(74)

In view of the court's reliance on the stacking practice, no MLM should promote this practice, nor tolerate the practice by distributors. It is simply a practice that will cause the company significant trouble if a securities claim is ever leveled against it.

U.S. v. Holtzclaw(75)

Amid these difficult decisions, however, is U.S. v. Holtzclaw. In this case, the defendant was involved in a multilevel program called "Sell America," which sold gold coin certificates. He enrolled the pastor of a church, who viewed the program as an opportunity to generate revenues for the church. The pastor invested $200,000.00 of the church's money, and during his sermons he encouraged individual members of the congregation to participate. The court had no difficulty finding that the program was a pyramid, but did not find that it was a security because the third and fourth elements of Howey were not satisfied. The third element was not satisfied because the court rejected the vertical commonality approach, and applied the horizontal commonality test. With regard to the fourth element of the test, the court's decision was based on the fact that the gold contracts sold through the program were sold by the participants rather than the Sell America company. Because the sales function was "the most essential function," and was not performed by the promoter, the fourth prong of the Howey test was not satisfied:

Unlike the situation in Glenn Turner and Koscot, Sell America does not make a presentation. See Glenn Turner, 474 F.2d at 482 (1973) (noting that sales "efforts are the sine qua non of the scheme" and that those sales efforts were not made by the investor); Koscot, 497 F.2d 473 (noting that the sales meetings were the most important element of the scheme and that those meetings ran "according to a preordained script, the deviation from which would occasion disapprobation"). In Sell-America's "3-B" program all of the essential efforts are performed by the investors themselves. Indeed, as described in the brochure, the earnings under the "Unitary Marketing Plan" are based solely upon your own efforts and abilities.(76)

The Holtzclaw decision provides MLM industry members with an emphatic reminder that it is critical to ensure that distributors, and not the company, perform the functions associated with recruitment, enrollment, and sales. At this juncture, however, marketing and legal considerations violently collide. Clearly, from a marketing perspective, providing a "plug-n-play" system that is easily duplicatable and leaves distributors with few responsibilities and a turn-key sales and enrollment system is the optimum program. From a legal perspective, however, this is far from ideal.

Bell v. Health-Mor, Inc..(77)

This point is again illustrated by Bell v. Health-Mor, Inc. In Bell, the Defendant was selling vacuum cleansers through a referral sales program pursuant to which the buyer received a certificate that entitled him to $10.00 for the name of each potential customer he submitted to the defendant if the referred customer submitted to a sales demonstration conducted by the defendant. The defendant argued that the $10.00 referral fee was not dependent upon the consummation of a sale, but simply on securing the appointment. The court stated that this fact could nullify the common enterprise or the significant effort elements of the Howey test if the individual who was receiving the referral fee engaged in securing the prospective customer's appointment:

In this regard, the central inquiries are what were the significant efforts in producing the $10 fee and who made those efforts. The payment of the $10 fee was dependent upon a qualified customer's submitting to a sales demonstration. Thus, the significant effort in earning the fee was prompting the potential vendee to witness a demonstration, or, in other words, selling the sales demonstration and making the necessary appointment. If the efforts were made by plaintiffs, then there would be no security involved and the action would be subject to dismissal.(78)

SEC v. International Heritage, Inc.

The same analytical approach has been followed by the courts in more recent decisions. In the IHI case, the court found that the fourth prong was satisfied based upon the sales aids and materials prepared by the company as well as the meetings and events that the company sponsored:

[U]pper-level management of IHI implemented widespread promotional programs which included live conferences, telephone conferences, meetings, and training events. The Retail Sales Career Kit purchased by each representative included brochures, video presentations, audio cassettes, and flip chart presentations which explained IHI's marketing program and were used to advertise IHI's program to prospective participants. An IHI representative only had to find a listening ear, while IHI promoters retained immediate control over the managerial conduct of the enterprise. Representatives only had to find two recruits. Representatives testified that they understood their sales organization would grow simply by duplication. After finding two recruits, investors would profit by the geometric progression of the process of recruitment, and the success of a representative's investment was inextricably tied to the efforts of IHI promoters.(79)

This decision is extremely important for the MLM industry because it demonstrates a new element that the courts will analyze when conducting a Howey analysis. This element, which is commonly referred to as "spillover," occurs when a compensation plan is designed so that a sponsoring distributor is forced to place new recruits somewhere other than on his front line. This is quite common in binary compensation plans (IHI operated a binary) because each sponsoring distributor has only two front line positions, so if a distributor recruits three, or if the distributor's front line has already been filled by another distributor's efforts, the distributor must place the new recruit front line to someone else in his downline. From a marketing perspective, this again is very attractive, because the compensation plan channels each distributor's growth so that it benefits others. However, this approach leads distributors to believe they will be successful based upon the efforts of others. If a program promotes its program by emphasizing the benefits of spillover, legal and marketing concerns will have a full-speed, head-on collision. Undoubtedly, this is one of the dangers inherent in binary plans, since the marketing temptation to highlight the spillover factor is significant.

Capone v. NuSkin

In another recent case, Capone v. Nu Skin, the court considered marketing factors emphasized by Nu Skin that went beyond factors traditionally considered by prior courts:

The court is of the view that a reasonable jury could conclude from the relevant evidence that plaintiff reasonably expected to receive significant profits from the efforts of others as defined in Howey and Forman, supra. Indeed, it appears to the court that, in marketing this program, defendants place great emphasis on distributors duplicating themselves, receiving commissions from the sales of others, making big money from building a sales force, becoming financially independent and the like.

Moreover, Nu Skin represents that distributors do not have the 'traditional headaches of being in your own business.' A transcript of the Nu Skin "Opportunity of a Lifetime" video tape represents:

There is no payroll. Because Nu Skin does all of that for you. They pay, not only yourself, but everyone in your network. There is no accounts receivable. Everything is done through credit cards and watts lines and cash. There is no bookkeeping. Nu Skin does all the bookkeeping for you. 50% of the downtime of all of the small businesses is bookkeeping and there is no inventory, huge amounts of inventorying because they drop ship directly, all the people in your network. So you have a very exciting business where really, you only have to do two things and that is get people on the product and get people on the opportunity.(80)

The court's analysis strikes at the heart of the MLM method of doing business. Indeed, the same marketing methods utilized by Nu Skin are common practices among many other companies in the industry. Promoting the business aspects of a program by emphasizing that the company will handle many of the administrative tasks is such a common theme in MLM that it is rare for a company not to promote this benefit.

A closer inspection of the Nu Skin decision however, reveals that in addition to focusing on Nu Skin's representations that distributors can earn commissions based on the efforts of others, the court also focused on activities that the Glenn W. Turner court did not consider to be elements that would satisfy the fourth prong of Howey. The Turner court held that selling efforts are the sine qua non of the business. These are the functions that are critical to the operation of the business, and therefore must be performed by the distributors rather than the company in order to avoid the violating the Howey test. The Nu Skin court, however, recognized that it was the distributors' function to "get people on the product and get people on the opportunity." If indeed this was the function of the distributors, then Nu Skin was complying with the mandates of the Glenn W. Turner decision because these are the sales functions that the Ninth Circuit identified as critical to the success of the business. Unfortunately, the Nu Skin court focused on the administrative and ministerial functions that the company performed on behalf of distributors as evidence that the Howey test could be satisfied.

Piambino v. Bailey(81)

Piambino v. Bailey arose from the Bestline Products, Inc. class action securities litigation. Bestline operated a multilevel marketing plan with three levels. At the first level were "local distributors" who sold Bestline's products directly to the public. The middle level were "Direct Distributors." One became a direct distributor by first becoming a local distributor and selling approximately $5,000.00 worth of products per month. One could also become a direct distributor pursuant to the company's "prepurchase plan." Under the prepurchase plan, a local distributor could become a direct distributor by paying $3,400.00 in cash, for which the distributor would receive products with a retail value of $5,000.00. Direct distributors were not required to sell products to the consuming public or even to local distributors whom they sponsored. They could, of course, sponsor new local and prepurcahse direct distributors. If a direct distributor recruited two new direct distributors, he moved up to the third level, called the "general distributor" level.

The district court had found that the Bestline program constituted a security, and awarded summary judgment to the plaintiffs. The case was appealed to the Fifth Circuit Court of Appeals. In its analysis of the program, the Fifth Circuit found many components of the Bestline program that mirrored the approach taken by other pyramid schemes that had been found to be investment contracts. Among these, the court noted:

The lure of big profits came from the opportunity to recruit others rather than from the opportunity to sell Bestline products.

The company urged distributors to hold monthly "opportunity meetings," and to follow a preordained script provided by the company.

If a distant prospect signed up for a distributorship, the referring friend became his sponsor and received a share of the commissions paid on the products purchased from Bestline by the distant prospect, even if the referring friend took no part in the actual recruitment other than inviting him to the opportunity meeting.

Prepurchase direct distributors were required to make large initial purchases to qualify for their position.

Commissions were paid to upline distributors on the large purchases of the prepurchase direct distributors even if the prepurchase distributor made no effort to sell the products to the consuming public.

Prepurchase distributors did not need to retail the products they purchased. Rather, they could concentrate on the "wholesale" part of the business and try to recruit new prepurchase direct distributors whose initial purchases could be applied toward fulfilling his or her own requirements for becoming a General Distributor.

The court's comments displayed a high degree of skepticism that the Bestline program was legal. Nevertheless, because the court was reviewing the district court's summary judgment and was not reviewing the case on the merits, it was incumbent upon the Fifth Circuit to review the facts in the light most favorable to the defendants. To overturn the district court's summary judgment, it was only necessary to find a disputed material fact. In its analysis, the court found that there was a disputed material fact in issue. Despite all of the indicia of a pyramid and a security, the Bestline program did emphasize that it was necessary for prospects to work. In addition, the company's meetings did emphasize the necessity of retail sales and the saleability of the products. (On this point, the court lacked evidence to ascertain what part of the company's total sales were made to consumers and what part remained in the hands of the various classes of distributors.) The summary judgment was therefor reversed and the case remanded to the district court for further factual findings.

2. The Risk Capital Test

While many state Blue Sky laws are modeled closely after the federal acts, the state courts are not bound to follow the decisions of the federal courts when interpreting their respective state statutes. Consequently, a minority of states have rejected the Howey test in lieu of a more flexible approach known as the "risk capital test." The concern of the states is that the Howey requires that courts analyze an investment contract mechanically, based on a narrow concept of investor participation. It is the position of the states adopting the risk capital test that the courts adapting the Howey test fail to consider the more fundamental question whether the statutory policy of affording broad protection to investors should be applied even to those situations where an investor is not inactive, but participates to a limited degree in the operation of the business.(82)

Thus, with this underlying rationale, the court in State of Hawaii v. Hawaii Market Center, Inc., held that:

[a] sounder approach to securities regulation requires that courts focus their attention on the economic realities of security transactions: that is, '[t]he placing of capital or laying out of money in a way intended to secure income or profit from its employment' in an enterprise.(83)

In this regard, the court determined that:

The salient feature of securities sales is the public solicitation of venture capital to be used in a business enterprise. ... The subjection of the investor's money to the risks of an enterprise over which he exercises no managerial control is the basic economic reality of a security transaction.(84)

In the Hawaii Market Center case the defendants intended to open a retail store that would sell merchandise only to members. To raise capital for financing, the company recruited "founder-members." The number of founder-members was limited to 5000. Prospective founder-members attended recruitment meetings where a company speaker explained how members would become eligible to earn immediate income before the store became operational, and future income after it became operational. A person became a founder-member "distributor" by purchasing either a sewing machine or cookware set from the company for $320.00. Each item had a wholesale value of $70.00. A person could become a "supervisor" by executing a founder-member contract and purchasing a sewing machine and a cookware set for a total price of $820.00. A supervisor was entitled to earn override commissions on sales made by his downline distributors.

To protect against the shortcomings of the Howey test, and to effectuate the above stated purposes, the Hawaii Supreme Court set forth the following test to determine if an investment contract exists:

(1) An offeree furnishes initial value to an offeror, and (2) a portion of this initial value is subjected to the risks of the enterprise, and (3) the furnishing of the initial value is induced by the offeror's promises or representations which give rise to a reasonable understanding that a valuable benefit of some kind, over and above the initial value, will accrue to the offeree as a result of the operation of the enterprise, and (4) the offeree does not receive the right to exercise practical and actual control over the managerial decisions of the enterprise.(85)

Applying the test to the facts, the court found that the prices of the products were so inflated that the investment by distributors constituted "risk capital":

The terms of the offer and the inducements held out to the prospects clearly indicate that the substantial premiums paid by founder-members to HMC are given in consideration for the right to receive future income from the corporation. These overcharges constitute the offerees' investments or contributions of initial value, such value being subjected to the risks of the enterprise.

The court found that the investor's initial value was subjected to the risks of the enterprise based on the following finding::

  • The recruitment fee paid to distributors and supervisors rests on the promoters' ability to sell the success of the plan to prospective members.

  • Members who choose to rely solely on the payment of commissions based on sales receive no return on their investment unless the store functions successfully. This latter point is particularly important because recruitment of members increases geometrically. Therefore, since membership is limited to five thousand, a very large percentage of founder-members will be totally dependent on sales commissions to recover their initial investment plus income. It is thus apparent that the security of the founder-members' investments is inseparable from the risks of the enterprise.

  • The promise of a valuable return on the offeree's investment element of the test was satisfied by the commissions that the members anticipated. The court stated that it was irrelevant that the benefits were not "profits" shared between the company and the members. The valuable benefit need not be a "profit."

  • The founder-members possessed none of the incidents of managerial control that would preclude the finding of a security. They had no power to influence the utilization of accumulated capital. Nor did they have any authority over those decisions that will affect the operation of the store if it was successfully established. They were powerless to protect their original investment.(86)

The risk capital test was again applied against a multilevel program in State of Tennessee v. Brewer,(87) In Brewer, the defendants started a private wholesale store that sold products to members of the wholesale club. Members were compensated through a multilevel compensation system. The initial capital for purchasing and stocking the building was to be secured by selling "specialty" merchandise such as cookware, vacuum cleaners, and jewelry to members who sought to join the wholesale club. Each of the specialty products was initially priced at $995.00, although the actual wholesale value of the products was approximately $200.00. From each sale, approximately $438.00 was applied to operating expenses, $182.00 was applied to overrides, $175.00 was applied to commissions, and approximately $200.00 went to cover the cost of the product. Members were advised that the price of the specialty products had such a significant markup in order to facilitate the purchase of a building and inventory for the store.

To become members of the wholesale club, individuals were only required to bring guests to the meetings. The company was responsible for all of the product marketing. Individuals could not become members of the club by purchasing specialty products in their own names, but the company advised several people that they could evade the rule by simply making up a hypothetical name under which products could be purchased.

The Tennessee Supreme Court identified the purpose of the risk capital test: "Under the risk capital test the focus is not so much on whether the investors derive their profits solely from the efforts of others, but rather on whether the promoter is relying on the investors for a substantial portion of the initial capital necessary to launch the enterprise."(88) The court then distinguished the differences between the risk capital and the Howey-Forman tests:

The first prong of the Hawaii Market test is nothing more than the investment concept of the Howey-Forman test. The second prong adopts the concept of risk capital, whereas Howey-Forman focuses on the existence of a common venture, i.e., vertical or horizontal commonality. The third prong of Hawaii Market utilizes the more liberal concept of the expectation to receive a "benefit" instead of the slightly more restrictive concept of "profits" found in Howey-Forman. Lastly, the fourth prong makes explicit, in layman's terms, the Howey-Forman principle that the investor exercises no managerial control.(89)

There is clearly an overlap between the risk capital and Howey tests. The differences, while subtle, are significant. Most notably, the risk capital test avoids much of the confusion surrounding the commonality component of the Howey test. Arguably, a company that offers and enforces a strong inventory repurchase policy will be able to overcome an attack under the risk capital test because there is no risk of loss. For a start-up company, however, this is difficult to do since the company lacks a track record of providing refunds to terminating distributors.

B. Pyramids as Securities

Despite its lack of precision and uniformity of application, the Howey test remains the principal standard by which an MLM program will be judged to determine if it violates the securities laws. However, in Webster v. Omnitrition, the Ninth Circuit evaluated the Omnitrition plan under the federal securities laws without engaging in a Howey analysis. The district court found that the Omnitrition program was not a security because distributors did not earn commissions primarily based on the efforts of others, and therefore the Howey test was not satisfied. Nevertheless, on appeal, the Ninth Circuit simply sought to determine if a jury could find that the program was a pyramid. If the program was pyramid, the court stated that it constituted a fraud for purposes of §12(2) of the Securities Act of 1993 and §10 of the Securities Exchange Act of 1934.(90) The Court of Appeals did not even address the Howey test. Therefore, a discussion of the Omnitrition decision is necessary.

The Ninth Circuit's approach, while a novel development at the federal level, is not wholly unprecedented when the compared to the approach taken by a limited number of states. New York for example, has passed legislation that a chain distribution plan (a pyramid) is per se a security. The statute provides:

§ 359-fff. Chain distributor schemes prohibited

1. It shall be illegal and prohibited for any person, partnership, corporation, trust or association, or any agent or employee thereof, to promote, offer or grant participation in a chain distributor scheme.

2. A chain distributor scheme shall constitute a security within the meaning of this article and shall be subject to all of the provisions of this article.(91)

A comprehensive analysis of pyramid law is beyond the scope of this article. However, one must at the very least understand that pyramid law is a weapon in any regulator's or plaintiff's arsenal. While the Omintrition Court's approach is subject to criticism for its failure to conduct a Howey analysis, the decision will nevertheless certainly be cited by the prosecuting party in a securities action against an MLM. The reason is two-fold. First, a determination that a securities violation has occurred creates a broader array of damages and criminal liability than are available under a pyramid cause of action. Secondly, in jurisdictions that apply the horizontal or strict vertical commonality tests, it is substantially easier to prove that a program constitutes a pyramid over proving that a program is a security.

C. Wrapping it Up

At the outset of this article it was pointed out that the principals of law that are utilized to prosecute MLMs as securities are not new. In fact, the road map for the court's to follow was set forth by the SEC in 1971 in SEC Release No. 9387 (92). Therein, following a Howey analysis, the SEC expressed its opinion that multilevel distributorships that are offered through pyramid sales plans often involve the offering of an investment contract or a participation in a profit sharing agreement, which are securities within the meaning of Section 2(1) of the Securities Act of 1933. The SEC elaborated on this point by stating:

Where, ... prospective participants are led to believe that they may profit from participation in these distribution programs without actually assuming the significant functional responsibilities that normally attend the operation of a franchise, in the Commission's opinion there is the offer of a security. Even where a specific offer is not made, if in the actual operation of a distributor-ship program profits are shared with or other forms of remuneration are given to persons who have provided funds to the enterprise - purportedly for a franchise or other form of license - but those persons do not in fact perform the functions of a franchisee, there would appear to be an investment contract.

It must be emphasized that the assignment of nominal or limited responsibilities to the participant does not negative the existence of an investment contract; where the duties assigned are so narrowly circumscribed as to involve little real choice of action or where the duties assigned would in any event have little direct effect upon receipt by the participant of the benefits promised by the promoters, a security may be found to exist. As the Supreme Court has held, emphasis must be placed on economic reality.

The SEC also emphatically stated that it will look to the substance of a program over form. After citing Securities and Exchange Commission v. C.M. Joiner Leasing Corp.,(93) and the Howey decision, the Commission expressed its opinion that:

The term "security" must be defined in a manner adequate to serve the purpose of protecting investors. The existence of a security must depend in significant measure upon the degree of managerial authority over the investor's funds retained or given; and performance by an investor of duties related to the enterprise, even if financially significant and plainly contributing to the success of the venture, may be irrelevant to the existence of a security if the investor does not control the use of his funds to a significant degree. The "efforts of others" referred to in Howey are limited, therefore, to those types of essential managerial efforts but for which the anticipated return could not be produced.

Of course, not wanting to limit its arsenal, the SEC also stated that the Risk Capital test as set forth in Hawaii Market Centers applies under federal securities laws. However, subsequent federal court decisions have elected not to apply the risk capital test to the federal statutes. The United States Supreme Court has had the opportunity to adopt the risk capital test, but has declined to do so. In United Housing Foundation, Inc. v. Forman, the Supreme Court indicated its reluctance to apply the risk capital test:

Even if we were inclined to adopt such a "risk capital" approach we would not apply it in the present case. Purchasers of apartments in Co-op City take no risk in any significant sense. If dissatisfied with their apartments, they may recover their initial investment in full. (94)

Thus, while the federal courts have not embraced the risk capital test, the SEC Release nevertheless identifies it as an issue that the MLM industry must be aware and vigilant.

Finally, the Commission explains that pyramid schemes are subject to prosecution under the Securities Acts because they are inherently fraudulent:

Since there are a finite number of prospective participants in any area, however, those induced to participate at later stages have little or no opportunity for recruitment of further persons. It is patently fraudulent to fail to disclose these factors to prospective investors.

While lacking detail and precise guidance, the SEC Release nevertheless was foretelling in that as far back as 1971 it identified the principal means by which an MLM program could be classified as a security - under a Howey analysis, under the risk capital test, and under a pyramid analysis. With almost 30 years of case law following the SEC Release, we are certainly in a better position to identify certain measures that MLM's should employ to avoid classification as a security.

IV. PRACTICE POINTERS

The foregoing discussion presents a great deal of information that is not particularly easy to digest. But we can glean some important points that MLMs can build into their programs and practices to avoid the problems associated with securities laws.

A. Avoid Mandatory Investments

Avoiding the first prong of the Howey test entails ensuring that there is no investment of money required to become eligible to earn a commission. In this regard, compensation plans should be set up so that a distributor can be successful even if they do not purchase any product. If a program has a minimum sales volume requirement, distributors must be able to satisfy their quota through retail sales to their customers. There are two methods to provide for retail sales to customers wherein the distributor does not need to put up any of his or her own money. First, the distributor can take and place a customer's order and submit the customer's check or credit card to the company. Secondly, a more effective and efficient method is a direct customer program. Pursuant to these programs, a distributor can enroll customers who can contact and place orders directly with the company. The customer is coded to the distributor that signed him up, so the distributor is entitled to a commission from the customer's purchase. In both situations the distributor did not carry inventory or invest his or her money. In either case, the company should clearly and conspicuously explain this option to distributors. If it is a feature of the plan, but buried in the description or not pointed out in the presentation, regulators will treat the alternative as though it does not exist.

Introductory sales kits, or "starter kits" as they are often called, is also an area where a company must be careful to ensure that it does not require a mandatory investment. It is common for companies to require the purchase of a starter kit to become a distributor. It makes perfect sense to require this, since it will contain the information distributors need to become familiar with the business and the company's products or services. But giving the kits away would cost every company a fortune. Therefore, in addition to making the kits subject to the inventory repurchase provisions discussed above, the company should also sell the kits at its cost. While technically this would be deemed an investment, in the International Heritage case the court allowed the company to continue to require the purchase of a starter kit so long as it was sold at cost. While this may not satisfy every court, there are compelling arguments why the kit, if sold at cost and subject to a refund policy, should not satisfy the investment criteria. Principal among these arguments is that with these elements in place, the distributor is not subject to the risk of loss. In addition, he or she will not be anticipating profits from the investment in the kit. Rather, the anticipated profits will be derived from sales efforts. The kit itself is not an asset from which the distributor will anticipate generating an income.

A company should also be careful not to sell its products at inflated prices. As the Hawaii Market Center case illustrates, a court can find that such a pricing strategy constitutes risk capital. In addition, it will also be deemed an investment under the Howey test since it is evident that the reason the purchaser is willing to pay a substantial premium over the legitimate price of the product is so that he or she can participate in an income opportunity.

B. Implement and Enforce a Strong Inventory Return Policy

From a legal perspective it would be ideal if no distributor ever personally purchased inventory or products to meet sales requirements, but this is unrealistic from a marketing standpoint. The common approach is for distributors to buy their inventory and use or resell it to personal customers. This is logical from a marketing perspective because: 1) customers want to see the product before buying it; and 2) the distributor must first purchase the product to become familiar with what she is selling. Therefore, the company should ensure that it has a generous inventory repurchase policy. The industry standard is that upon a distributor's cancellation of his or her distributorship, the company will repurchase all of a distributor's resalable inventory at a rate of not less than 90% of the original purchase price. This repurchase policy extends for one year from the date of the purchase. This same repurchase policy should also apply to sales aids and starter kits purchased by distributors. If a company is willing to repurchase any goods that a distributor has in inventory upon the distributors termination, the argument that the purchase constitutes risk capital is diluted because the distributor's money is not at risk. In addition, under the Howey test, it is arguable that a distributor has not committed his funds to the enterprise, so there is no investment.

C. Avoid Inventory Loading and Excessive Prices

Common sense must also be heeded (unfortunately, common sense all too often is the first thing to go out the window when the greed factor is present). Companies must keep their sales quotas at a reasonable level. If a company requires its distributors to sell $2,000.00 worth of product each month it will be in a much more precarious position than a company that requires its distributors to sell $100.00 of product per month. Again, someone who shells out $2,000.00 is at a much greater risk of loss, even with a strong inventory repurchase policy. After all, even if the company issues a 90% refund, the distributor would be out $200.00 a month's inventory versus $10.00 under a program that only called for a $100.00 quota. Moreover, it is much more likely that a distributor and her family could personally use $100.00 worth of products in a month, and therefore argue that they were buying products rather than investing money. As the sales quota figure climbs, however, this argument is dramatically weakened.

D. Distributors Must Perform the Critical Functions

With the understanding that the law requires that distributors must perform the critical functions, the question arises: "What are the critical functions that must be performed by distributors, and which functions constitute permissible support offered by the company? In response, the Glenn W. Turner decision makes it crystal clear that the distributors must perform the sales and enrollment functions. In the words of the court, these functions are the sine qua non of the business. Therefore, no company should ever present its program with the claim that the company, the structure of the compensation plan, or the prospect's upline, will do the work for them. Similarly, if a company learns that a distributor is recruiting new participants with the pitch: "Just get in and I'll put people in for you," the company's compliance department should move quickly to teach the distributor why this is an improper method of promoting the program. If the distributor nevertheless fails to heed the warning, disciplinary action should be taken.

On the topic of the "critical functions," the Capone v. Nu Skin decision warrants discussion because the court considered non-sales and enrollment functions that were performed by the company on distributors' behalf as evidence that the company was performing the critical functions. The court specifically cited claims in the company's Opportunity of a Lifetime video that represented the company takes care of book keeping, inventory and shipping. Under the Glenn W. Turner analysis, these representations should not constitute evidence that the program is a security since the referenced activities are not the functions which the Glenn W. Turner court deemed the sine qua non of the business. Despite the criticism that can be leveled at the court for this decision, it provides guidance to MLMs that the emphasis should be on the totality of the distributors' efforts that are necessary to make the business successful, and not to overemphasize the assistance the company will provide on distributors' behalf.

The danger that a program may be presented as a security does not only arise from representations made by the MLM companies. Distributors too can make inappropriate representations that create the same problems. Have you ever heard the recruiting pitch: "Just get in and I'll put people in for you." If a distributor presents a program in this fashion, the new recruit is being lead to believe that his upline will do the work for him. If this practice becomes widespread within the company's distributor base, there is a great risk that the entire program will be challenged as a security. It is therefore important that distributors refrain from representing that they will build a downline for someone else.

It is an inherent feature under some types of compensation structures that the upline will recruit distributors for their downline. Under binary plans and forced matrices for example, each distributor has only a limited number of first level distributors. If their first level is filled, subsequent recruits must be placed at lower levels, thereby benefitting their downline. This is known as a "spillover" feature. While it is extremely tempting to emphasize spillover when recruiting new distributors, doing so leads the prospect to believe that their success will be based on the efforts of others. Therefore, MLMs that use these types of compensation plans should de-emphasize the spillover feature and implement stringent personal retail sales and recruiting requirements to ensure that distributors are not lead to anticipate profits from spillover. These requirements must also be ongoing. This is in contrast to the common binary pitch that all one must do is "Get two and your through!" From a legal standpoint, the sales requirements should be ongoing.

Similarly, no company should promote stacking, or allow its distributors to do so. The International Loan Network decision is a crystal clear example of the pitfalls associated with the practice. Boiled down to its essentials, stacking is simply another method of gathering warm bodies to invest in the program. The funds invested by the family members drive the profits for the others, and a court will perceive a stacked downline as investment income rather than income from the legitimate sales efforts of each upline family member.

It is of course to the company's and the distributors' benefit if the company produces high quality sales, training, recruiting, and instructional materials. It is key, however, that the company not represent to distributors that "these materials will do the work for you." It is a great marketing pitch, but it is fraught with risk because it can easily be inferred that the company is simply telling distributors to assemble warm bodies in front of the television, and the company produced video tapes and other materials will do the rest. Thus, while it is appropriate to use these tools, distributors must understand that they have a critical role in the sales and recruitment process, and that they must not rely on the company's materials to perform these functions for them. Again, this is an area where the legal and marketing considerations will collide. Ultimately, finding the appropriate balance is more art than science since this is truly a tight-rope balancing act.

E. Distributors Should Have Ongoing Sales and Managerial Responsibilities

One of the common goals of distributors is to develop a residual income. If improperly presented, residual income can be confused with passive investment income. Residual income means that the distributor does the initial work and continues to get paid for those efforts into the future. However, this does not mean that a distributor can abandon the business altogether. She must continue to service customers, and work with her downline. Passive investment income, on the other hand, means that the distributor makes a financial investment, but the managerial work is done by someone else. To avoid confusion between "residual" and "passive" income, distributors should have ongoing responsibilities throughout their MLM career. As with any other business, the nature of a distributor's responsibilities will change as he gains experience. In the early stages of an MLM business, a distributor may spend most of her time recruiting and selling. As she becomes more successful and experienced, she will spend the majority of her time consulting with select leaders within her downline and conducting large group meetings in conjunction with downline members.

This presents a dilemma for MLM companies because, as independent contractors, the company cannot dictate that distributors must perform a specific number of meetings every week, month, or year. This must be left up to the individual distributor's discretion. However, if distributors are taught why it is important to have ongoing training, consulting, and managerial contact with a downline, and this ethic is instilled in the group, it will be very difficult for a regulator to assert that the company is actually promoting a passive investment income rather than an opportunity for residual income.

E. Do Not Finance a Company by Selling Top Positions

One of the biggest, yet most common, mistakes that start-up MLMs make is to sell their top positions to generate investment capital to get the business off the ground. This practice clearly constitutes a sale of a security under the risk capital test (it usually also constitutes the sale of a business opportunity and franchise, but these laws are beyond the scope of this article). In fact, I have even seen established MLMs sell top positions to acquire a cash infusion. While it may be more difficult to generate financing through venture capital avenues, start up companies must not succumb to the temptation of selling positions.

Companies in the "prelaunch" phase must also be careful not to violate the risk capital test. Often, start-up companies in the prelaunch phase take in money to reserve positions in a downline before the company actually launches, and before products and services are ready for the consumer. The funds derived from these positions is then invested in the company. Again, as with selling the top positions, this practice unquestionably violates the risk capital test, and therefore should be avoided at all costs.

E. Income Guarantees and Projections

Income guarantees are problematic from a securities analysis because they lend themselves to the argument that the investors are lead to anticipate profit. They are often presented as offering a return on an investment rather than a return based on a distributor's sales efforts. A court will consider "the expected return as compared to the effort involved to be a significant factor in determining whether what is acquired is payment for services or is in the nature of an investment in defendants' enterprises. " S.E.C. v. Bull Investment Group, Inc.(95)

F. Pyramid Traps and Pitfalls

Many of the pointers in this section are applicable to avoiding pyramid problems. However, a comprehensive discussion of pyramid issues would entail a separate article of equal length to this one. This discussion will therefore be reserved for another day. Some quick tips, however, are:

  • The primary emphasis of the program must be on generating sales to end user consumers, not on recruitment of new participants into the compensation plan;

  • Be careful not to offer a plan pursuant to which commissions are actually "recruitment based bonuses." That is, the sale of products and services must not be so intermingled with recruitment of new distributors that the two elements are inseparable. If sales and enrollments are so closely tied to one another, the sale of goods or services will be attacked as merely a camouflage for a commissions based on recruitment of new distributors;

  • Do not require unrealistic monthly volume quotas. From a regulator's standpoint, less is always better. If you have a $2,000.00 monthly personal volume requirement, it is unrealistic to expext distributors to actually retail this amount every month, and there is little hope of winning on the basis that personal consumption of the product by distributors is appropriate.

  • Implement a strong (at least 90%) inventory and sales aid repurchase policy for terminating distributors;

  • Do not operate a pay-to-play program. With the exception of an at cost sales kit, distributors' personal purchases must always be discretionary;

  • NEVER, NEVER, NEVER, pay a commission out of a sign up fee. Commissions must only be paid from the sale of consumable products or services to end consumers;

  • Do not allow distributors to stack their organizations (i.e., enroll phantoms, their minor children, the dog, the cat, etc.). Make sure their downline recruits and customers are real people, not ghosts. Allowing stacking is simply a camouflage for a head hunting and inventory loading program;

  • Enforce the companies policies against inventory loading;

  • Avoid income projections;

  • Paying multilevel commissions on the sale of training programs is fraught with risk and should be avoided. While it is appropriate to pay someone who personally trains another distributor, paying training commissions to the trainer's upline will cause problems;

  • Avoid "self funding" programs. If a program is represented as one in which the distributors' subsequent inventory purchases are paid for through deductions from his commission checks, it is highly probable that the true source of the commissions is derived from the purchases of the new participants. Such programs are driven by recruiting rather than product sales, and will run afoul of anti-pyramid laws.

1. Spencer Reese is a partner in the law firm of R&R Law Group PLLC. He is a graduate of the Washington University School of law and is a member of the Idaho, Missouri and Colorado bars. He was formerly in-house counsel for Melaleuca, Inc., a multilevel marketing company with sales in excess of $260 million. Mr. Reese's current practice includes representing and advising multilevel marketing companies on all aspects of their business, including consumer protection issues, advertising law, litigation, contracts, marketing plan design, regulatory compliance, trademark law, FDA law, policy development and distributor compliance. Visit the firm's website at www.mlmlaw.com. Mr. Reese can be contacted at (208) 522-2600 or via e-mail at sreese@nicoh.com.

2. 15 U.S.C. § 77e(a) provides:

"Unless a registration statement is in effect as to a security, it shall be unlawful for any person, directly or indirectly - (1) to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to sell such security through the use or medium of any prospectus or otherwise; or (2) to carry or cause to be carried through the mails or in interstate commerce, by any means or instruments of transportation, any such security for the purpose of sale or for delivery after sale."

15 U.S.C.§77e(c) provides: "It shall be unlawful for any person, directly or indirectly, to make use of any means or instruments of transportation or communication in interstate commerce or of the mails to offer to sell or offer to buy through the use or medium of any prospectus or otherwise any security, unless a registration statement has been filed as to such security, or while the registration statement is the subject of a refusal order or stop order or ... any public proceeding or examination under section 8 (15 U.S.C. § 77h).

3. S.E.C. v. Continental Tobacco Co. of South Carolina, 463 F.2d 137, 155 (5th Cir. 1972).

4. 3. See U.S.C. §77o(1), which provides: "It shall be unlawful for any broker or dealer ... to induce or attempt to induce the purchase 15 or sale of, any security ..., unless such broker or dealer is registered in accordance with subsection (b) of this section."

5. 15 U.S.C. §77x.

6. 579 NW 2d 144, 254 Neb. 18 (1998).

7. 739 F.2d 1057 (6th Cir. 1984).

8. 739 F.2d at 1067.

9. 739 F.2d at 1068. The court remanded the case to the district court, however, for further findings on whether the manager's activities were a substantial factor in the sales made to all plaintiffs.

10. 739 F.2d at 1068.

11. 254 Neb. at 24 - 25.

12. The fraud provisions of the Securities Act provide:

(a) It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments ... in interstate commerce or by the use of the mails, ... (1) to employ any device, scheme, or artifice to defraud, or (2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statement made, in the light of the circumstances under which they were made, not misleading, or (3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.

15 U.S. C. §77q(a)

The Exchange Act provides:

It shall be unlawful for any person, ..., by the use of any means or instrumentality of interstate commerce or of the mails, ..., (b) To use or employ, in connection with the purchase or sale of any security ..., any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors.

15 U.S.C. §78j.

The most often used of the "rules and regulations" established by the S.E.C. pursuant to the preceding statute is Rule 10b-5, which provides:

It shall be unlawful for any person, ..., by the use of any means or instrumentality of interstate commerce, ..., (a) To employ any device, scheme, or artifice to defraud, (b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or (c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, in connection with the purchase or sale of any security.

17 C.F.R. §240.10b-5.

13. See e.g. S.E.C. v. International Loan Network, Inc., 770 F.Supp. 678, 694 (D.C. 1991); S.E.C. v. The Better Life Club of America, Inc., 995 F.Supp. 167 (D.C. 1998).

14. 417 F.Supp. 1225 (E.D.N.Y. 1976).

15. 417 F.Supp. at 1244 - 45.

16. 417 F.Supp. at 1247.

17. 15 U.S.C. §77q(a)(2) of the Securities Act makes it illegal "to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statement made, in the light of the circumstances under which they were made, not misleading." Section q(a)(3) makes it illegal "to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser." It is not necessary to prove scienter under these section of the anti-fraud provisions. S.E.C. v. International Loan Network, Inc., 770 F.Supp. 678, 694 (D.C. 1991); S.E.C. v. The Better Life Club of America, Inc., 995 F.Supp. 167 (D.C. 1998).

18. Aaron v. S.E.C., 446 U.S. 680, 686 (1980).

19. See e.g., S.E.C. v. Carriba Air, Inc., 681 F.2d 1318, 1324 (11th Cir. 1982).

20. 79 F.3d 776 (9th Cir. 1996).

21. 770 F.Supp. 678 (D.C. 1991).

22. Id. at 694.

23. Id. at 694.

24. The definition of a "security" under the Securities Act and the Securities and Exchange Act are virtually identical. Techerepnin v. Knight, 389 U.S. 332, 335 - 36 (1967), so the courts have interpreted them in like fashion.

25. 328 U.S. 293 (1946).

26. 421 U.S. 837 (1975).

27. 328 U.S. at 298-99.

28. 474 F.2d 476 (9th Cir. 1973).

29. 474 F.2d at 482.

30. S.E.C. v. International Mining Exchange, Inc., 515 F.Supp. 1062, 1068 (D.Colo. 1981), quoting Stowell v. Ted S. Finkel Investment Services, Inc., 489 F.Supp. 1062, 1068 (D.Fla. 1980). See also: S.E.C. v. Comcoa Ltd., 855 F.Supp. 1258, 1260 (D. Fla. 1994; Wooldridge Homes, Inc. v. Bronze Tree, Inc., 558 F.Supp. 1085, 1986 (D. Colo. 1983); Kolibash v. Sagittarius Recording Co.,626 F.Supp. 1173 (S.D. Ohio 1986).

31. A common exception to the "no required purchase" rule is that a "starter kit" of introductory sales materials must be purchased by a distributor so long as: 1) the company makes no profit on the sale of the kit; and 2) it is refundable upon its return to the company if the distributor terminates). In fact, the IHI court allowed the company to continue to require its distributors to purchase an" at cost" sales kit for $100.00 as a prerequisite to becoming a distributor. The court did not classify this expenditure as "an investment" sufficient to satisfy the first prong of the Howey test.

32. 328 U.S. at 301.

33. 770 F.Supp. 678 (DC 1991).

34. Id. at 691.

35. Id. at 691, note 13.

36. Capone v. NuSlin Canada, Inc., Case No. 93-C-0285-S, Memorandum Decision, March 27, 1997.

37. 194 F.Supp.709 (N.D. Tex. 1961).

38. 587 F.2d 413 (9th Cir. 1978).

39. Revak v. SEC Realty Corp., 18 F.3d 81, 87-88 (2d Cir. 1994); Coan v. Bell Atlantic Systems Leasing International, Inc., 813 F.Supp. 929, 936 (D. Conn. 1990); New York v. First Meridian Planning Corporation, 201 A.D.2d 145, 152 (1994).

40. 950 F.Supp. 1306 (D. W.V. 1997).

41. 469 U.S. 1115 (1985).

42. 455 U.S. 551 (1982)

43. 950 F.Supp. at 1316.

44. 595 F.2d 459 (9th Cir. 1978). See also: Hector v. Wiens, 533 F.2d 429 (9th Cir. 1976); Mechigian v. Art Capital Corp, 612 F.Supp. 1421 (N.Y. 1985, later proceeding, 639 F.Supp. 702.)

45. 595 F.2d at 461.

46. xU.S. v. Carman, 577 F.2d 556 (9th Cir. 1978); El Khadem v. Equity Securities Corp., 494 F.2d 1224 (9th Cir. 1974).

47. 474 F.2d 476 (9th Cir. 1973).

48. 474 F.2d at 482, note 7.

49. 497 F.2d 473, 479 (5th Cir. 1974).

50. 497 F.2d at 479.

51. 770 F.Supp. 678 (DC 1991).

52. 770 F.Supp. at 692.

53. 896 F.2d 85 (5th Cir. 1990).

54. 896 F.2d at 88.

55. 18 F.3d 81 (2d Cir. 1994).

56. 18 F.3d at 89, Quoting SEC v. Continental Commodities Corp., 497 F.2d 516, 522 (5th Cir. 1974); See also: Savino v. E.F. Hutton & Co., 507 F.Supp. 1225 (N.Y. 1981); Mechigian v. Art Capital Corp., 612 F.Supp. 1421 (N.Y. 1985); Kaplan v. Shapiro, 655 F.Supp. 336 (N.Y. 1987); Shotto v. Laub, 635 F.Supp. 835 (MD 1986).

57. 421 U.S. 837, 95 S.Ct. 2051, 44 L.Ed.2d 621 (1975).

58. 421 U.S. at 853.

59. 421 U.S. at 858

60. 421 U.S. at 853, note 17.

61. 549 F.2d 342 (5th Cir. 1977).

62. 549 F.2d at 345-46.

63. 166 Mich. App. 683, 421 N.W.2d 177 (1986).

64. 474 F.2d 476 (9th Cir. 1973).

65. Id. at 479.

66. Unlike the Court of Appeals, the trial court found that the plans sold by Dare fell into three categories of securities. In addition to constituting an investment contract, the district court also found that the program constituted "certificates of interest" and "profit sharing agreements." The district court held:

It would seem that its plain meaning encompasses these transactions. What the investors receive, after all, is a right to a cut of the profits from other investors. In the opinion of this Court, it is immaterial that the entire profits in Dare to be Great are not divided up among all the investors and that they are only entitled to the profit from a particular designated source. In other words, an agreement to share some profits is within the meaning of the statutes as well as an agreement to share all profits.

384 F.Supp. 766, 776 (D. OR 1972). The Court of Appeals, however, found that the plan was an investment contract, so it did not inquire into the other securities issues.

xNote however, that the district court in SEC v. Interplanetary, Inc., 365 F.Supp. 588 (Koscot was another program operated by Glenn W. Turner Enterprises), held that the Koscot plan was not a profit sharing arrangement because a successful recruiting distributor received a fixed fee rather than a share of Koscot's profits. 365 F.Supp. 590 - 91. The Fifth Circuit did not disturb this holding in the Koscot appeal, but rather, reversed only the district court's holding on the investment contract issues. (See SEC v. Koscot Interplanetary, Inc., 497 F.2d 473 (1974)).

67. 474 F.2d at 482.

68. Id. at 842.

69. 421 U.S. 837 at 852.

70. 497 F.2d 473 (5th Cir. 1974).

71. Id at 485.

72. Id. at 485.

73. 770 F.Supp. 678 (DC 1991).

74. Id at 692.

75. 950 F.Supp. 1306 (D. W.V. 1997), affirmed 131 F.3d 137 (1997).

76. Id. at 1317.

77. 549 F.2d 342 (5th Cir. 1977).

78. 549 F.2d at 346.

79. SEC v. International Heritage, Inc., U.S. District Court, N.D. GA, Case No. 1:98-CV-803, Memorandum Opinion and Order, April 3, 1998.

80. U.S. Disctirct Court for the District of Utah, Case No. 93-C-0285, Memorandum Decision dated March 27, 1997.

81. 610 F.2d 1306 (5th Cir. 1980).

82. State of Hawaii v. Hawaii Market Center, Inc., 485 P.2d 105, 108 - 09 (1971); 52 Haw. 642.

83. Id at 109 Citing State v. Gopher Tire & Rubber Co., 177 N.W. 937, 938 (1920); 146 Minn. 52.

84. Id.

85. Id. at 109.

86. 485 P.2d 105 at 110-11.

87. 932 S.W. 2d 1 (Tenn. 1996).

88. 932. S.W.2d at 11.

89. 932 S.W.2d at 13-14.

90. 79 F.3d at 781.

91. NY GEN BUS § 359-fff.

92. 36 Fed. Reg. 23289 (1971).

93. 320 U.S. 344 (1943).

94. 421 U.S. at 857. The risk capital approach was also rejected in SEC v. Koscot Interplanetary, Inc., 365 F.Supp. 588 (GA 1973) Reversed on other grounds, 497 F.2d 473...

95. 1975 U.S. Dist. Lexis 13449; Fed. Sec. L. Rep. (CCH) 95,010 (D. Mass. 1975).

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