“An investment contract for purposes of the Securities Act means 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...” In the twenty-five years following that statement by the Supreme Court in SEC v. W.J. Howey Co., the test announced adequately protected the investing public and, with few exceptions, endured without major revision. The last three years, however, have brought an onslaught of criticism from courts and legal commentators, and the result has been a steady, but now accelerating, erosion of the 1946 definition. The four elements of that definition, (1) investment of money, in a (2) common enterprise, with the (3) expectation of profit, (4) solely from the efforts of the promoter or a third party, have been subjected to such judicial expansion that they no longer furnish a reliable guide for courts faced with the problem of distinguishing between similar transactions to determine which are within the ambit of the federal securities laws. At the same time, however, the courts have been reluctant to depart from the words of the Supreme Court.
Securities, SEC v. W.J. Howey Co., Investing