Are limited liability company interests, like limited and general partnership interests, 'investment contracts' under the Securities Exchange Act of 1934 when the investors rely on the promoter's admitted promises that he solely will manage and control the enterprise, the promoter prepares agreements and implementing resolutions providing the promoter such exclusive management control, and the promoter retains veto power over his removal such that the investors rely 'solely' on the promoter's efforts to affect the enterprise's profits?

QUESTIONS PRESENTED Paul Robben fraudulently induced Rich Bartlett and his wife Dena along with Ernie Straub (“Straub”) to invest in Robben’s real estate venture called Foxfield Villa Associates, LLC (“FVA”). Robben told Rich Bartlett and Straub they were part of a “select group of investors.” Robben admittedly convinced the investors that Robben would solely manage the enterprise and distribute the profits, structuring contracts and implementing resolutions accordingly. Petitioners claim that they purchased “investment contracts” subject to federal securities laws. The Tenth Circuit disagreed invoking a six-part “objective” test only applicable to limited liability companies (“LLCs”) which varies drastically from the test applied to limited and general partnerships. In doing so, the Tenth Circuit’s LLC-only test further splintered an already non-uniform standard to determine whether defrauded investors were “led to expect profits solely from the efforts of others.” S.E.C. v. W.J. Howey Co., 328 U.S. 293, 301 (1946). The Tenth Circuit’s label-driven, LLC-only test constitutes a split with other circuits in that the Second, Fifth, and Ninth Circuits’ analysis focuses on the totality of the circumstances by employing the same test regardless of the statelaw entity’s nominal title affording federal securities law protections to investors similarly situated as Petitioners unlike the Tenth Circuit’s LLC-only framework. li QUESTIONS PRESENTED Continued The Tenth Circuit’s decision raises the following issue not yet decided by this Court: Are limited liability company interests, like limited and general partnership interests, “investment contracts” under the Securities Exchange Act of 1934 when the investors rely on the promoter’s admitted promises that he solely will manage and control the enterprise, the promoter prepares agreements and implementing resolutions providing the promoter such exclusive management control, and the promoter retains veto power over his removal such that the investors rely “solely” on the promoter’s efforts to affect the enterprise’s profits?