FLETCHER, Circuit Judge:
The plaintiff-investors ("investors") appeal from the district court's summary judgment that the investments did not constitute securities within the meaning of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b). The investors likewise seek to appeal the district court's denial of their motion for reconsideration of the summary judgment order in light of Hocking v. Dubois, 885 F.2d 1449, 1454 (9th Cir.1989) (en banc), cert. denied, ___ U.S. ___, 110 S.Ct. 1805, 108 L.Ed.2d 936 (1990). The defendant-promoters ("promoters") have filed a motion to limit the scope of this appeal to review of the summary judgment order since the investors did not file a separate notice of appeal related to the later order denying reconsideration. The promoters also move for sanctions based on the investors' alleged violations of Circuit Rules 28-2.8 and 30-1.4.
The investors are primarily doctors, dentists and their relatives (and corporations formed by them for investment purposes) who invested between $23,000 and $500,000 each in general partnerships formed to purchase land for the production of jojoba. Several of the promoters had been the longtime accountants of a number of the investors. Promoter Beverly Chew, who drafted most of the relevant documents, had been the attorney for investors Koch, Wong and Lowe for a number of years
The overall investment scheme involved thirty-five different general partnerships, each of which purchased eighty acres of land from "selling corporations" owned by the promoters, which in turn purchased land from a common seller.
Each general partnership was comprised of one operating general partner and a number of general partners. The thirty-five partnership agreements detail identically the rights and responsibilities of the partners. The operating general partners have responsibility for executing the general partners' decisions about the management
The degree of actual participation by the general partners and operating general partners and its significance to the endeavor is a matter of considerable dispute. The promoters point out that some investors have voted on such partnership business decisions as whether to pay additional assessments to meet operating budgets, a proposed sale of partnership assets in response to an offer by a third party, whether to interplant alfalfa between rows of jojoba, whether to join a marketing cooperative, whether to amend the partnership agreement, water district elections, and whether to stop farming their parcel or section. In addition, some investors have visited the property their partnerships purchased and tested the soil. There are also letters and memoranda in the record from operating general partners and general partners which suggest that the operating general partners paid careful attention to the status of their particular farms and kept the general partners informed in some detail as to the status of particular plots.
The investors argue, on the other hand, that their role was essentially passive. It is undisputed that none of them had any experience in jojoba farming. It appears that even those investors who nominally held the role of operating general partner usually acted as conduits for materials created by the promoters. The investors assert that the operating general partners did not even generate the pro rata assessments for operating expenses for each general partner. Those figures were determined by the promoters. Finally, the investors assert that any voting they did was largely pro forma in light of their lack of expertise, their inability to devote time to direct participation in the project, and their ability at best to shape decisionmaking only for the eighty acres owned by their particular general partnership. It is even disputed in the record whether, had investors actively exercised decisionmaking regarding the farming of their particular parcels of land, their decisions would have been implemented.
As one might guess from the fact that the parties are now in court, the investments proved less than successful. "The super bean of the future" did not achieve its full potential in this venture. Approximately ninety of the investors brought suit in the federal district court alleging violations of both federal and state law. The district court exercised its discretion to refuse jurisdiction of the pendent state law claims, leaving only the federal securities law claims. The promoters then brought motions for summary judgment on statute of limitations and jurisdictional grounds. The district court, relying heavily on the case of Matek v. Murat, 862 F.2d 720, 724-32 (9th Cir.1988), granted the promoters' motion for summary judgment on jurisdictional grounds, holding the investments
Subsequent to the granting of summary judgment, this court decided en banc the case of Hocking v. Dubois, 885 F.2d 1449 (9th Cir.1989). The appeal was therefore remanded on a limited basis to the district court for decision of the investors' Rule 60(b) motion for reconsideration in light of Hocking. The district court denied reconsideration. No notice of appeal was filed regarding that order.
A district court's summary judgment that investments are not securities is reviewed de novo. Deutsch Energy Co. v. Mazur, 813 F.2d 1567, 1568-69 (9th Cir.1987). We therefore, like the district court, consider the evidence in a light most favorable to the non-moving party (the investors) and determine whether there is any genuine issue of material fact and whether the promoters are entitled to judgment as a matter of law. Lone Ranger Television, Inc. v. Program Radio Corp., 740 F.2d 718, 720 (9th Cir.1984). A district court's denial of a motion for reconsideration pursuant to Rule 60(b) is reviewed for abuse of discretion. Fiester v. Turner, 783 F.2d 1474, 1475-76 (9th Cir.1986); Plotkin v. Pacific Tel. & Tel. Co., 688 F.2d 1291, 1293 (9th Cir.1982).
A. Scope of the Appeal.
Because the investors filed no notice of appeal related to the district court's denial of their motion for reconsideration, we do not review that order. As a practical matter, however, such limitation on the scope of the appeal makes no difference; since we review the grant of summary judgment de novo and would only review the denial of reconsideration for abuse of discretion, and since the two orders concern the same question of whether the investment constituted a "security," de novo review of the summary judgment obviates any practical need for review of the order denying reconsideration.
B. Whether the Investment Constitutes a "Security".
In order to make out a claim under the federal securities laws, the investors must demonstrate as a threshold matter that the promoters' alleged misrepresentations were made in connection with the purchase or sale of a security. Both section 2 of the Securities Act of 1933, 15 U.S.C. § 77b(1) (1982) and section 3 of the Securities Exchange Act of 1934, 15 U.S.C. § 78c(a)(10) (1982), define the term "security" to include, inter alia, any "investment contract." Since the investments involved in this case do not constitute any of the other types of securities protected by the Acts, the critical threshold inquiry is whether the general partnerships constitute "investment contracts" within the meaning of the Acts.
The term "investment contract" has been interpreted by the Supreme Court broadly to reach "[n]ovel, uncommon, or irregular devices, whatever they appear to be ..." SEC v. C.M. Joiner Leasing Corp., 320 U.S. 344, 351, 64 S.Ct. 120, 124, 88 L.Ed. 88 (1943). "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 the use of the money of others on the promise of profits." SEC v. W.J. Howey Co., 328 U.S. 293, 299, 66 S.Ct. 1100, 1103, 90 L.Ed. 1244 (1946) (holding that a combined sale of units of a citrus grove development coupled with a contract for cultivating, marketing and remitting the net proceeds to the investor was an "investment contract"). The Court has consistently expressed the view that "[b]ecause securities transactions are economic in character Congress intended the application of these statutes to turn on the economic realities underlying a transaction, and not on the name appended thereto." United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 849, 95 S.Ct. 2051, 2059, 44 L.Ed.2d 621 (1975); Howey, 328 U.S. at 298, 66 S.Ct. at 1102. Thus, the fact that the investments here are structured as "general partnerships" is not determinative of their status
The Supreme Court in Howey set out the classic three-part definition of an investment contract: "[A]n 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." 328 U.S. at 298-99, 66 S.Ct. at 1102-03. The Ninth Circuit has held that "the word `solely' should not be read as a strict or literal limitation on the definition of an investment contract." SEC v. Glenn W. Turner Enters., Inc., 474 F.2d 476, 482 (9th Cir.), cert. denied, 414 U.S. 821, 94 S.Ct. 117, 38 L.Ed.2d 53 (1973); Hocking, 885 F.2d at 1455. Instead, this circuit looks to 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." Id.
1. Scope of Inquiry As to the Control Element of Howey.
In deciding whether investors have raised a genuine issue of material fact as to the third element of Howey, we face a threshold question as to what evidence is relevant to that determination: whether the inquiry should focus solely on the formal partnership agreement and the powers it confers on the investors, or whether it should encompass other factors which implicate the investors' practical ability to control their investment. The district court relied on Matek, which mandates consideration only of the formal, legal powers of investors. 862 F.2d at 730. We conclude, however, that such reliance on Matek was erroneous in light of the subsequent en banc opinion in Hocking v. Dubois, 885 F.2d 1449 (9th Cir.1989).
In Matek a three-judge panel addressed for the first time in the Ninth Circuit "the issue of whether general partnership interests that are marketed are securities for the purposes of the securities laws." Matek, 862 F.2d at 725. The panel rejected the "bright-line" approach articulated in Goodwin v. Elkins & Co., 730 F.2d 99 (3d Cir.), cert. denied, 469 U.S. 831, 105 S.Ct. 118, 83 L.Ed.2d 61 (1984), (holding that no general partnership formed pursuant to the UPA is a security), finding that such a label-oriented approach ignored the "economic reality test." Matek, 862 F.2d at 727. The panel likewise rejected the Fifth Circuit's three-prong test set out in Williamson v. Tucker, 645 F.2d 404 (5th Cir.1981), as creating too much uncertainty. It adopted Williamson's first prong and expressly rejected the other two prongs, stating that Williamson went "too far." Matek, 862 F.2d at 728-29.
The Fifth Circuit held in Williamson that:
Williamson, 645 F.2d at 424. According to Williamson the critical determination is whether, although "[o]n the face of a partnership agreement, the investor retains substantial control over his investment and an ability to protect himself from the managing partner or hired manager ..., [the investor can demonstrate that] he was so dependent on the promoter or on a third party that he was in fact unable to exercise meaningful partnership powers." Id. The Williamson opinion made clear that the three factors are not exclusive and that "other factors could ... also give rise to such a dependence." Id. at 424, n. 15. Williamson likewise specified that the inquiry is not directed to what actually transpires after the investment is made, i.e., whether the investor later decides to be passive or to delegate all powers and duties to a promoter or managing partner; rather, "one would have to show that the reliance on the manager which forms the basis of the partner's expectations was an understanding in the original transaction." Id. at 424, n. 14 (emphasis added).
In rejecting the second and third prongs of Williamson as creating too much "uncertainty in the area of business investing," Matek, 862 F.2d at 729, the panel in Matek held that "[t]he proper focus must be the partnership agreement and not how in fact the entity functioned in carrying out its business affairs." 862 F.2d at 731. Matek likewise held that "access to information about the investment, and not managerial control, is the most significant factor." 862 F.2d at 728. The promoters urge this panel to follow Matek strictly and to look only to the partnership agreement in evaluating whether the investors expected profits through the efforts of others.
The promoters' reliance on Matek is misplaced, however, in light of the subsequent en banc decision in Hocking, which cites Williamson as "the leading case on the control issue" and expressly adopts and applies all three Williamson factors. 885 F.2d at 1460.
The promoters also seek to distinguish Hocking on the basis that it did not address a general partnership but involved a condominium purchase and rental pooling agreement. This second point is a distinction without a difference, running directly counter to Howey's mandate that courts address "economic reality" rather than focusing on the labels attached to schemes by promoters. It is clear that the en banc panel in Hocking was addressing the third element of Howey and adopted Williamson's approach as the appropriate framework for analyzing investor control. It is likewise clear that the en banc panel in Hocking did not view its application of Howey as limited to the condominium context; on the contrary, it cited to a number of general partnership cases (including Matek) in its discussion of Howey's third element. 885 F.2d at 1460-61.
The promoters' arguments that Hocking does not affect the viability of Matek are unpersuasive. We therefore look to the en banc opinion in Hocking as the controlling law of this circuit and apply all three Williamson factors in evaluating whether the investors expected profits produced by the efforts of others so as to satisfy the third element of Howey.
2. Application of the Williamson/Hocking factors.
In determining whether the investors relied on the efforts of others, we look not only to the partnership agreement itself, but also to other documents structuring the investment, to promotional materials, to oral representations made by the promoters at the time of the investment, and to the practical possibility of the investors exercising the powers they possessed pursuant to the partnership agreements. Hocking, 885 F.2d at 1457. "[T]he question of an investor's control over his investment is decided in terms of practical as well as legal ability to control." Id. at 1460.
Assuming the disputed facts in favor of the nonmoving party (the investors), the investors were told from the outset that it was infeasible to farm jojoba in eighty-acre parcels and that the land owned by their partnership would be farmed as part of a 2700-acre plantation. They agreed from the outset to purchase irrigation, seeds, fertilizer and weedkiller from the promoters at specified prices. All 160 investors involved in the thirty-five partnerships agreed to hire the same on-site manager and were informed that the same two experts would be consulted regarding the planting. Most importantly, none of the investors knew anything about jojoba farming and, taking their allegations as true, none of them intended to engage actively in the business of jojoba farming. Rather, they relied substantially on the knowledge of the promoters and experts, and on the services to be provided by the on-site manager. Finally, it appears to be undisputed that jojoba farming was a relatively new undertaking in the United States, and that there were few individuals with expertise in the area.
The investors argue that all three Williamson factors tilt in favor of a finding that the investments here were securities. Because of the reliance of the individual partnerships on participation in the larger plantation, the investors contend that the power of the partnership is distributed as is the power in a limited partnership, thus implicating the first Williamson factor. The investors, however, are jumping ahead to the third factor and ignoring the crux of the first. It is clear from both Williamson itself and from Hocking that the first factor is addressed to the legal powers afforded the investor by the formal documents without regard to the practical impossibility of the investors invoking them. Here, the partnership agreement clearly affords the partners significant legal powers.
As a legal matter, the partners have the responsibility and authority to control every aspect of the jojoba cultivation process. Additional assessments of capital must be approved by 75 percent of the partnership
Under the second Williamson factor we consider the investors' sophistication and expertise. There were approximately 160 investors in the overall scheme (90 of whom are plaintiffs in this case). While it is undisputed that none of the investors had prior experience in jojoba farming, that draws the question too narrowly. Under Williamson, the relevant inquiry is whether "the partner or venturer is so inexperienced and unknowledgeable in business affairs that he is incapable of intelligently exercising his partnership or venture powers." 645 F.2d at 424 (emphasis added). Here, while the investors were doctors and dentists as opposed to business-people, all of them had at least $23,000 to invest in the venture and some had considerably more. The record indicates that some of the investors had prior experience in pistachio ventures and other tax shelters at the time of their investment. However, since the district court focused exclusively on the investors' formal status, the record is not fully developed on this issue and we simply have no basis for evaluating the sophistication of many of the investors. The question of the investors' expertise or lack thereof and its effect on their ability to exercise their powers intelligently is a question of fact which should be resolved in the first instance by the trial court. Since the record is insufficiently developed on this issue, we remand to the district court to determine whether the investors have raised a genuine issue of fact as to whether their lack of expertise prevented them from exercising meaningful control over their investment.
We turn finally to the third Williamson factor, which involves whether "the partner or venturer is so dependent on some unique entrepreneurial or managerial ability of the promoter or manager that he cannot replace the manager of the enterprise or otherwise exercise meaningful partnership or venture powers." 645 F.2d at 424. In this case, the investors' reliance on participation in the larger, 2700-acre jojoba plantation is analogous to, and arguably more extreme than, Hocking's reliance on the rental pooling agreement. In Hocking, the en banc panel noted that while the investor enjoyed complete legal control over his particular condominium unit, he
Here, as in Hocking, there is a question of fact as to whether the investors could, as a practical matter, pull out of the larger enterprise and still receive the income they had contemplated when they made the investment. The promoters focus on the significant management powers and access to information afforded the general partners by the partnership agreements. The partnership agreement, however, only provides for the exercise of general partner control and decisionmaking within each partnership, and as to the land controlled by each partnership, not as to issues concerning the entire plantation. Likewise, the access to information provisions of the partnership agreement apply only to information related to the partnership and available to the partnership or the operating general partner. As discussed supra, however, actual farm management was not undertaken directly by the general partners on a partnership-by-partnership basis and the investors assert that they never intended to play an active role in managing the farming of jojoba. Rather, the thirty-five general partnerships shared a common foreman, originally selected by promoter Hankins and later replaced by him, who oversaw the planting and management of the entire 2700-acre plantation.
As in Hocking, while the investors here could readily order the on-site manager to cease cultivating their particular plot,
The fact that some investors were provided with detailed information about the status of their eighty acres and that some investors visited the land and even offered evaluations and suggestions to the on-site managers is not dispositive. See Howey, 328 U.S. 293, 296 n. 2, 66 S.Ct. 1100, 1101 n. 2 ("Some investors visited their particular plots annually, making suggestions as to care and cultivation, but without any legal rights in the matters."); see also, Reeves v. Teuscher, 881 F.2d 1495, 1499 (9th Cir.1989) (although limited partners in real estate
Thus, the investors here have at least raised an issue of fact as to the necessity of participating in the 2700-acre plantation in order to produce income from the general partnership acreage, and as to their ability to affect decisionmaking regarding that larger plantation. They have not, as did the plaintiff-investors in Williamson, made only vague statements that they relied and were dependent upon the efforts of the promoters. 645 F.2d at 425. Having raised a genuine question as to the third Williamson factor, they likewise have created a genuine question for the trier of fact as to whether at the time of their investment they expected any profit to arise essentially through the efforts of others. Howey, 328 U.S. at 299, 66 S.Ct. at 1103. The district court's grant of summary judgment in favor of the promoters must therefore be reversed.
3. Investors' Additional Arguments.
We need not reach the investors' additional arguments that the investment constituted a security because the "general partnership agreement was purposefully drafted to escape the application of the securities laws," see Matek, 862 F.2d at 731, or that it constituted a security under the "risk capital" approach, see Great W. Bank & Trust v. Kotz, 532 F.2d 1252, 1257 (9th Cir.1976) (per curiam).
We reverse the grant of summary judgment to the defendant-promoters and remand to the district court for further proceedings consistent with this order. The promoters' motions for sanctions based on the investors' alleged violations of Circuit Rules 28-2.8 and 30-1.2 are denied.