COMMODITIES INTERNATIONAL, INC. v. Eure

207 S.E.2d 777 (1974)

22 N.C. App. 723

COMMODITIES INTERNATIONAL, INC. v. Thad EURE, Secretary of State, et al.

No. 7410SC408.

Court of Appeals of North Carolina.

August 21, 1974.

*778 Atty. Gen. Robert Morgan by Associate Atty. Keith L. Jarvis, Raleigh, for defendants-appellants.

Clayton, Myrick & McCain by Grover C. McCain, Jr., Durham, for plaintiff-appellee.

MORRIS, Judge.

The sole question presented for our determination is whether London options are *779 "securities" subject to regulation by the State under the Securities Law, G.S. Chap. 78. If London options fall within the definition of "securities" in G.S. § 78-2(g), then their sale is clearly illegal without prior registration with the Secretary of State. G.S. § 78-23(b); G.S. § 78-19; G.S. § 78-6.

At the outset, it behooves us to note that plaintiff's prayer for relief purports to characterize his action both as one for injunctive relief and a declaratory judgment. It is well established that ordinarily an injunction will not lie to restrain the enforcement of a statute, since the constitutionality, defects, or application of the statute may be tested in a prosecution for the violation of the statute. 4 Strong, N.C. Index 2d, Injunction, § 5.

A party has no standing to enjoin the enforcement of a statute or ordinance absent a showing that his rights have been impinged or are imminently threatened by the statute. Surplus Co. v. Pleasants, 263 N.C. 587, 139 S.E.2d 892 (1965). The order issuing the injunction must be vacated.

However, we feel that this action was proper under the Declaratory Judgment Act (G.S. § 1-253 through G.S. § 1-267).

"The courts do not lack power to grant a declaratory judgment merely because a questioned statute relates to penal matters. When a plaintiff has a property interest which may be adversely affected by the enforcement of the criminal statute, he may maintain an action under the Declaratory Judgment Act to determine the validity of the statute in protection of his property rights. (Citations omitted.)" Jernigan v. State, 279 N.C. 556, 561, 184 S.E.2d 259 (1971).

G.S. § 78-2(g) provides as follows:

"Securities, etc.The term `securities' or `security' shall include any note, stock certificate, stock, treasury stock, bond, debenture, whiskey warehouse receipt, evidence of indebtedness, transferable certificate of interest or participation, certificate of interest in a profit-sharing agreement, any instrument representing any interest or right in or under any oil, gas or mining lease, fee or title, or rights or interests in land from which petroleum or minerals are, or are intended to be produced, certificate of interest in an oil, gas or mining lease, collateral trust certificate, any transferable share, investment contract, or beneficial interest in or title to property or profits or any contract or agreement in the promotion of a plan or scheme whereby one party undertakes to purchase the increase or production of the other party from the article or thing sold under the plan or scheme, or whereby one party is to receive the profits arising from the increase or production of the article or thing sold under the plan or scheme, or any other instrument commonly known as security."

The defendants contend that the London options are within the coverage of four clauses of this definition. It is their position that London options are:

(a) evidence of indebtedness (b) investment contracts (c) instruments commonly known as securities, and (d) "contract[s] or agreement[s] in the promotion of a plan or scheme whereby one party undertakes to purchase the increase or production of the other party from the article or thing sold under the plan or scheme, or whereby one party is to receive the profits arising from the increase or production of the article or thing sold under the plan or scheme."

We deem it fitting to discuss the distinctions commonly recognized between the London or "Mocatto" option and the "naked option" or "new option". In so doing, we note that the stipulations of the parties at the final hearing are the only portions of the record characterizing the options which are the subject of this proceeding.

The traditional option to buy a commodity futures contractoften referred to as a *780 London option or Mocatto optionis an arrangement whereby an investor purchases an option to buy or sell a given quantity of a commodity for a specified price at a date in the future. A "call option" is the right to buy a futures contract at a guaranteed price on or before a specified date. A "put option" is the right to sell a futures contract at a guaranteed price on or before a specified date. See, King Commodity Company of Texas, Inc. v. State of Texas, 508 S.W.2d 439 (Tex.Civ.App.1974). The investor's profit is represented by the difference in the "striking price" (the price of the commodity on the day the option is purchased) and the price of the commodity on the date of the exercise of the option. Upon exercising the option, the investor actually buys or sells the contract for the commodity. These options are handled through recognized exchanges, and they are in fact backed by existing commodities contracts, although all options referred to as London options by the sellers are not backed by existing commodity contracts.

The new or naked option has adopted the legal form of the London option, but it is not backed by an existing commodities contract. The investor has a "repurchase" agreement with the broker which provides that upon exercise of the option the broker repurchases the option from the investor and gives him his profit on the transaction. Thus, the investor never buys or sells the contract; rather, he receives cash from the broker. Some of the present so-called London options take this form. For a more detailed discussion, see Long, The Naked Commodity Option Contract As A Security, 15 Wm. & Mary L.Rev. 211 (1974).

The definition of "security" in G.S. § 78-2(g) appears to be based in part on § 2(1) of the Securities Act of 1933, 15 U.S.C. § 77b(1) (1970), which provides as follows:

"The term `security' means any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profitsharing 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, 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."

The Uniform Securities Law, enacted in 28 States, is identical to § 2(1) of the Securities Act of 1933, except for oil, gas, and mineral interests and an exclusion of insurance and annuity contracts. Uniform Securities Act, § 401(1)(3) (1956). The similarity of these statutes to G.S. § 78-2(g) dictates our reliance on the decisions of the State and Federal Courts in interpreting them.

The characterization of commodity futures contracts and commodity options as securities has never been presented to the appellate courts of this State. In reviewing the Federal decisions and the decisions of the courts of states with statutes similar to G.S. § 78-2(g), we note the significance that those courts have placed on the features that distinguish naked options from London options, i. e., that the investor in a naked option never buys or sells the contract, that he receives cash from the broker representing his profit, and that his profit comes from the return on premium dollars in the hands of the broker, rather than from the purchase or sale of an actual futures contract. The courts have also placed considerable emphasis on the fact that the naked option is often directed at the unsophisticated investor who seeks a large profit and wishes to take a passive role. See, for example, King Commodity Company of Texas, Inc. v. Texas, supra; S.E.C. v. W. J. Howey Co., 328 U.S. 293, 66 S. Ct. 1100, 90 L. Ed. 1244 (1946) (defining "investment contracts"); International Commodity Trust, Inc. v. Fisher, 3 Blue Sky Law Rep. ¶ 71,075 (Okla., Dist.Ct., Okla. County, 14 *781 May 1973); Shaprio v. First Federated Commodity Trust Co., 3 Blue Sky Law Rep. ¶ 71,071 (Md.Cir.Ct., Baltimore County, 30 May 1973); People v. Puts & Callo, Inc., 3 Blue Sky Law Rep. ¶ 71,090 (Cal.Super.Ct., L. A. County, 21 June 1973).

For the proposition that futures contracts per se are not securities, see McCurnin v. Kohlmeyer & Co., 340 F. Supp. 1338 (E.D.La. 1972); Schwartz v. Bache & Co., 340 F. Supp. 995 (S.D.Iowa 1972); Sinva v. Merrill Lynch, Pierce, Fenner & Smith, 253 F. Supp. 359 (S.D.N.Y.1966).

One commentator has taken the position that for purposes of the Federal Securities Law, futures contracts will not, by themselves, be treated as securities. Further, he concludes that options to buy futures contracts will not be held to be securities within the meaning of the Securities Act of 1933, the Securities Exchange Act of 1934, or similar State legislation unless the characteristics of a naked option are shown to exist. Long, supra. We, therefore, deem it essential that the trial court have before it evidence of the mechanics of the commodity options in order to rule on whether the options are securities.

The trial court could properly have taken judicial notice of the mechanics of the true London options, since they are "capable of demonstration by resort to readily accessible sources of indisputable accuracy." 3 Strong, N.C. Index 2d, Evidence, § 3. However, the trial court could not have taken noticeabsent evidenceof the operation of the particular options being sold by plaintiff. The court made the following finding of fact:

"2. The premiums paid to plaintiff by purchasers of London Options are prices paid for the rights to the future acquisition of contracts for future delivery of commodities upon presently specified terms with prospect of gain to the payor-purchaser arising from exercise of the options under favorable commodities market conditions and not from the use of the premium."

This finding is not supported by competent evidence. As we have hereinabove stated, the court had before it only the stipulations of the parties. The record before us lacks sufficient evidence for the determination of whether the securities being sold by plaintiff are securities within the meaning of G.S. § 78-2(g). The cause is remanded for hearing.

Remanded.

HEDRICK and BALEY, JJ., concur.