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SEC v. Thompson, 732 F.3d 1151 (10th Cir. Oct. 4, 2013) 

Oct 4, 2013

The Tenth Circuit clarified that whether a “note” is a “security” in a civil case should be determined as a matter of law, except in “rare instances.” Thompson, 732 F.3d at 1161. The court reasoned that where the Supreme Court had set forth a rebuttable presumption that a note is a security, prescribed a “comparison of the subject instrument to a judicially crafted list of non-security instruments, and [prescribed] an inquiry into the existence and adequacy of alternate regulatory schemes,” this strongly suggested that the issue was one of law. Id. The court recognized that the determination included “factual and legal components,” and the court also implied a different application might be warranted in the criminal context. Id. (citation and internal quotation marks omitted).