     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                 June 4, 2020

                                2020COA87

No. 18CA1769, Chan v. HEI Resources — Financial Institutions
— Securities — Colorado Securities Act — Investment
Contracts; Business Organizations — General Partnerships

     A division of the court of appeals holds that when deciding

whether an ostensible general partnership interest in a venture is a

security under the Colorado Securities Act, the court must employ a

strong presumption that it is not. The division also holds that when

determining whether the general partners have sufficient experience

with or knowledge of business affairs that they can intelligently

exercise their partnership powers, venture-specific experience or

knowledge should not always be regarded as required: general

business experience and knowledge may be sufficient. In so

holding on these two issues, the division disagrees with the prior
court of appeals decision in this case, Rome v. HEI Resources, Inc.,

2014 COA 160.
COLORADO COURT OF APPEALS                                         2020COA87


Court of Appeals No. 18CA1769
City and County of Denver District Court No. 09CV7181
Honorable Michael A. Martinez, Judge


Tung Chan, Securities Commissioner for the State of Colorado,

Plaintiff-Appellee and Cross-Appellant,

v.

HEI Resources, Inc., f/k/a Heartland Energy, Inc.; Charles Reed Cagle;
Brandon Davis; Heartland Energy Development Corporation; John Schiffner;
and James Pollak,

Defendants-Appellants and Cross-Appellees.


                     JUDGMENT REVERSED AND CASE
                      REMANDED WITH DIRECTIONS

                                  Division V
                        Opinion by JUDGE J. JONES
                     Welling and Hawthorne*, JJ., concur

                           Announced June 4, 2020


Philip J. Weiser, Attorney General, Robert Finke, First Assistant Attorney
General, Charles J. Kooyman, Senior Assistant Attorney General, Denver,
Colorado, for Plaintiff-Appellee and Cross-Appellant

Thomas Law LLC, Jeffrey R. Thomas, Denver, Colorado for Defendants-
Appellants and Cross-Appellees HEI Resources, Inc. and Charles Reed Cagle

Holland & Hart, LLP, Marcy G. Glenn, Denver, Colorado; Munck Wilson
Mandala LLP, Shain A. Khoshbin, S. Wallace Dunwoody, Chase A. Cobern,
Dallas, Texas; Munck Wilson Mandala LLP, Jennifer D. Jasper, Austin, Texas,
for Defendants-Appellants Brand Davis and Heartland Energy Development
Corporation
Law Offices of Otto K. Hilbert II, Otto K. Hilbert, II, Denver, Colorado, for
Defendants-Appellants John Schiffner and James Pollak

Robinson Waters & O’Dorisio, P.C., Tracy L. Ashmore, Denver, Colorado, for
Amicus Curiae National Federation of Independent Business

Ballard Spahr LLP, Theodore J. Hartl, Denver, Colorado; Kameron Hillstrom,
Washington, D.C., for Amicus Curiae North American Securities Administrators
Associations, Inc.


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1    Plaintiff, Tung Chan, in his official capacity as Securities

 Commissioner for the State of Colorado, brought this enforcement

 action against defendants, HEI Resources, Inc. (HEI), f/k/a

 Heartland Energy, Inc.; Heartland Energy Development Corporation

 (HEDC); Charles Reed Cagle; Brandon Davis; John Schiffner; and

 James Pollack, for allegedly violating the Colorado Securities Act

 (CSA) in forming several oil and gas exploration and drilling joint

 ventures. The gist of the Commissioner’s position is that,

 notwithstanding that the investors are designated general partners

 in the joint ventures, their interests are securities (specifically,

 investment contracts) under the CSA and defendants violated

 certain requirements of the CSA when offering those interests.

¶2    In 2013, following a partial summary judgment and a trial, the

 trial court found that the joint venture interests aren’t investment

 contracts and therefore aren’t securities under the CSA. The court

 reached that conclusion after applying the leading case in this field,

 Williamson v. Tucker, 645 F.2d 404 (5th Cir. 1981), which identifies

 three ways in which a party can overcome a strong presumption




                                     1
 (the so-called “Williamson presumption”) that a general partnership

 interest isn’t an investment contract (the Williamson tests).1

¶3    The Commissioner appealed, and a prior division of this court

 reversed and remanded. Rome v. HEI Res., Inc., 2014 COA 160 (HEI

 I). The division concluded that the Williamson presumption doesn’t

 apply in an action under the CSA and that the trial court erred by

 considering the partners’ general, rather than venture-specific,

 business experience under the second Williamson test. The division

 remanded to the trial court

           for redetermination of whether the joint
           venture interests are securities under the
           second and third Williamson factors and any
           other ‘catch-all’ economic realities, taking into
           consideration our rejection of the strong
           presumption that general partnership interests
           are not securities and our determination that




 1 As discussed more fully below, the Williamson tests are (1)
 whether the parties’ agreement leaves so little power to the partners
 that they are in reality limited partners; (2) whether the partner has
 so little experience with and knowledge of business affairs that he
 can’t intelligently exercise his powers; or (3) whether the manager
 has such unique entrepreneurial or managerial skills that he is, as
 a practical matter, irreplaceable.

                                   2
            the relevant measure of business experience is
            experience in the business of the venture.

 Id. at ¶ 61.2

¶4    On remand, the trial court first determined that the general

 partners’ interests are investment contracts under the second and

 third Williamson tests and “other economic realities.” After taking

 additional evidence, the court later ruled that defendants had

 violated the CSA, enjoined them from engaging in securities-related

 activities in Colorado, and ordered certain defendants to pay

 restitution to the Commissioner.

¶5    This time, both sides appeal — the Commissioner by way of

 cross-appeal.3 Though the parties raise a host of issues, we only

 need to address four raised by defendants: (1) whether the prior

 division erroneously departed from well-established federal

 securities law by rejecting the Williamson presumption; (2) whether



 2 The prior division referred to the Williamson tests as “exceptions”
 or “factors.” We refer to them as tests because they are
 independent bases for analyzing whether a general partnership
 interest is an investment contract.
 3 The Commissioner cross-appeals one aspect of the trial court’s

 liability determinations and several aspects of the trial court’s
 remedial rulings. But in light of our resolution of defendants’
 appeal, we don’t need to address those issues.

                                    3
 the prior division erroneously held that the partners must have

 venture-specific experience under the second Williamson test; (3)

 whether the trial court improperly focused on whether the partners

 themselves could fill the role of the managing partner under the

 third Williamson test; and (4) whether the trial court erred by

 finding that the general partners’ interests are investment contracts

 under “other economic realities.”

¶6    For the reasons explained below, we agree with defendants

 that, contrary to the prior division’s holding, the Williamson

 presumption applies when general partnership interests are alleged

 to be investment contracts under the CSA. We also agree with

 defendants, again contrary to the prior division’s holding, that a

 collective lack of venture-specific experience isn’t dispositive under

 the second Williamson test; it is relevant, but what ultimately

 matters is whether the partners have sufficient collective knowledge

 and experience to intelligently exercise their powers. And we

 conclude that under the third Williamson test the question isn’t

 whether any of the general partners themselves could, if necessary,

 fill the role of the managing partner, but whether the managing

 partner is, considering the nature of the venture and the managing


                                     4
 partner’s knowledge and experience, essentially irreplaceable.

 These three conclusions are consistent with prevailing federal law

 applying corresponding federal statutes, which the General

 Assembly and the Colorado Supreme Court have expressly directed

 us to follow unless inconsistent with the purposes and provisions of

 the CSA. Lastly, we conclude that, although the three Williamson

 tests aren’t exclusive, those tests account for economic realities,

 and the court should consider other economic realities only if they

 aren’t adequately accounted for under the Williamson tests.

¶7    Accordingly, cognizant of our decision’s whiplash effect, but

 nevertheless convinced that the prior division’s decision is out of

 step with the applicable law, we reverse and remand to the trial

 court to determine, consistent with this opinion, whether the joint

 venture interests constitute investment contracts, based on the

 record developed to date.

                        I.     Background

¶8    Much of the relevant background is recounted in HEI I. The

 following, however, should give the reader enough to understand

 how we got to where we are now.




                                    5
                          A.   Historical Facts

¶9    Beginning in 2004, defendants solicited thousands of, in the

 trial court’s words, “wealthy, educated and sophisticated investors”

 nationwide by, in large part, cold-calling them and offering them

 interests in several oil and gas exploration and drilling joint

 ventures. If someone expressed interest in participating as a

 partner in a venture, they were sent an information package that

 included a “Confidential Information Memorandum” (CIM) and a

 “Joint Venture Agreement” (JVA).4 All parties acknowledge that,

 under the terms of the JVA, the joint ventures were organized as

 general partnerships under the Texas Revised Partnership Act, and

 that the partners ostensibly have significant management rights

 and responsibilities, such as the rights to call meetings, propose

 agenda items, access partnership records, receive business

 information, remove the managing partner, change the managing

 partner’s powers, and otherwise actively run the business by

 majority vote. The JVA also says the partners are jointly and




 4These documents didn’t differ materially (for our purposes) from
 venture to venture.

                                    6
  severally liable for any joint venture liabilities. The CIM delegates

  the venture’s day-to-day operations to either HEI or HEDC as the

  initial “managing venturer.”

                              B.    Litigation

¶ 10   In 2009, the Commissioner filed a complaint against

  defendants, alleging that they had violated the CSA by employing

  unlicensed sales representatives to offer and sell unregistered

  securities.

¶ 11   The court granted summary judgment for defendants on the

  first Williamson test in 2011. Two years later, after a seven-day

  trial, the trial court found that the joint venture interests aren’t

  investment contracts, and therefore aren’t securities, under the

  CSA. Specifically, the court ruled that the Commissioner had failed

  to overcome the Williamson presumption by showing that those

  interests are investment contracts under the second and third

  Williamson tests.

¶ 12   On appeal, as previously discussed, a division of this court

  reversed and remanded. First, it concluded that the trial court

  erred by applying the Williamson presumption because Colorado

  hadn’t adopted it. The division rejected the Williamson


                                      7
  presumption, reasoning that (1) the presumption is inconsistent

  with the governing economic realities test; (2) how the presumption

  applies is unclear; (3) it is based on a policy judgment, which is for

  the General Assembly, not the courts, to make; and (4) it isn’t

  necessary because the party claiming that the interests are

  securities ultimately bears the burdens of proof and persuasion

  anyway. Second, the division held that the trial court erred by

  considering the partners’ experience in business affairs generally,

  rather than their “collective experience” specific to the oil and gas

  exploration and drilling business under the second Williamson test.

¶ 13   On remand, the trial court found that the joint venture

  interests are investment contracts because (1) the partners are

  incapable of intelligently exercising their partnership powers due to

  their relative collective inexperience with oil and gas exploration

  and drilling operations specifically (the second Williamson test); (2)

  the partners are dependent on HEI and HEDC’s unique managerial

  skills because none of the general partners themselves can capably

  step into the managing partner’s shoes even if they desire a change

  in managing partner (the third Williamson test); and (3) apart from

  the Williamson tests, the economic realities generally so indicate.


                                     8
  Following a second trial, the court went on to find that defendants

  had violated the CSA and ordered injunctive relief and restitution.

                          II.     Discussion

¶ 14   One or more defendants variously contend that the trial court

  erred by (1) finding that the joint venture interests are securities; (2)

  finding that the statute of limitations of section 13-80-102(1)(i),

  C.R.S. 2019, doesn’t bar the Commissioner’s claims; (3) finding that

  the safe harbor of section 11-51-704(4), C.R.S. 2019, doesn’t

  immunize defendants from liability; (4) awarding the Commissioner

  restitution on behalf of out-of-state partners; (5) finding that

  defendants committed securities fraud by using unlicensed sales

  representatives to sell unregistered securities; (6) holding defendant

  Brandon Davis jointly and severally liable for restitution; and (7)

  granting the Commissioner’s request for an “obey-the-law”

  injunction. Because we reverse based on the first, threshold issue,

  we don’t address defendants’ other contentions.

¶ 15   Defendants present four arguments relating to whether the

  general partnership interests are investment contracts. The first

  two — that the prior division erred by rejecting the Williamson

  presumption and by requiring venture-specific experience under the


                                      9
  second Williamson test — and the fourth — that the trial court

  erred by finding that the interests are investment contracts when

  looking at the economic realities independent of the Williamson test

  — require us to revisit, to one degree or another, HEI I. The third —

  that the trial court erred by limiting potential replacements of the

  managing partners to the general partners — wasn’t analyzed in

  HEI I. After considering whether the law of the case dictates that

  we follow HEI I, and concluding that it doesn’t, we turn to the

  arguments’ merits.

                        A.    The Law of the Case

¶ 16   The Commissioner argues that there is no basis under the law

  of the case doctrine to reconsider HEI I. We don’t agree.

¶ 17   “The doctrine of the law of the case is a discretionary rule of

  practice directing that prior relevant rulings made in the same case

  generally are to be followed.” Mining Equip. Inc. v. Leadville Corp.,

  856 P.2d 81, 85 (Colo. App. 1993). Though the doctrine requires a

  trial court to follow an appellate court’s rulings on remand, Saint

  John’s Church in the Wilderness v. Scott, 2012 COA 72, ¶ 8, it “is

  merely discretionary when applied to a court’s power to reconsider

  its own prior rulings,” Grand Cty. Bd. of Comm’rs v. Colo. Prop. Tax


                                    10
  Adm’r, 2016 COA 2, ¶ 24; accord People ex rel. Gallagher v. Dist.

  Court, 666 P.2d 550, 553 (Colo. 1983); Saint John’s Church in the

  Wilderness, ¶ 8.

¶ 18    Indeed,

             a division of [the court of appeals] may review
             another division’s ruling in the same case if
             there is the possibility that “the previous
             decision is no longer sound because of
             changed conditions or law, or legal or factual
             error, or if the prior decision would result in
             manifest injustice.”

  Grand Cty. Bd. of Comm’rs, ¶ 24 (quoting Core-Mark Midcontinent,

  Inc. v. Sonitrol Corp., 2012 COA 120, ¶ 10); accord Saint John’s

  Church in the Wilderness, ¶ 8. For the reasons discussed below,

  reconsideration of the prior division’s decision is warranted. We

  turn, then, to the merits.

   B.    Are the General Partnership Interests Investment Contracts?

                        1.     Standard of Review

¶ 19    Whether an interest in a venture is an investment contract is a

  question of law that we review de novo. HEI I, ¶ 26; Joseph v.

  Viatica Mgmt., LLC, 55 P.3d 264, 266 (Colo. App. 2002); Straub v.

  Mountain Trails Resort, Inc., 770 P.2d 1321, 1323 (Colo. App. 1988).

  We also review de novo the trial court’s application of the governing


                                    11
  legal standards to the facts of the case. HEI I, ¶ 26. But if we need

  to examine any of the trial court’s findings of historical fact, we

  review them for clear error. Id.

                         2.    General Principles

¶ 20   We begin by covering familiar ground. The Commissioner’s

  complaint hinges on whether the general partnership interests are

  “investment contracts,” a species of security. See § 11-51-201(17),

  C.R.S. 2019. Because the CSA doesn’t define an “investment

  contract,” Colorado courts apply the three-part test set forth in

  Securities & Exchange Commission v. W.J. Howey Co., 328 U.S. 293

  (1946), as modified by United Housing Foundation, Inc. v. Forman,

  421 U.S. 837 (1975), cases addressing the meaning of investment

  contract under federal statute, to determine whether an interest in

  a venture is an investment contract. Toothman v. Freeborn &

  Peters, 80 P.3d 804, 811 (Colo. App. 2002). Under the Howey test,

  “an ‘investment contract’ is: (1) a contract, transaction, or scheme

  whereby a person invests his or her money (2) in a common

  enterprise and (3) is led to expect profits derived from the

  entrepreneurial or managerial efforts of others.” Toothman, 80 P.3d

  at 811 (citing People v. Milne, 690 P.2d 829, 833 (Colo. 1984)).


                                     12
¶ 21   This definition of investment contract “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.” Id.

  (quoting Howey, 328 U.S. at 299). So in determining whether a

  certain transaction is an investment contract, “the substantive

  economic realities underlying the transaction” govern over its name

  or form. Viatica Mgmt., 55 P.3d at 266; see Forman, 421 U.S. at

  851-52. In other words, the label given to a particular interest isn’t

  determinative of whether it is an investment contract. See

  Williamson, 645 F.2d at 423 (“A scheme which sells investments to

  inexperienced and unknowledgeable members of the general public

  cannot escape the reach of the securities laws merely by labelling

  itself a general partnership or joint venture.”).

¶ 22   In this case, the only part of the Howey test at issue is the

  third part — whether the partners were dependent on the

  managerial efforts of others for their expected profits. Before getting

  into the law specifically applicable to that question, we pause to

  acknowledge the role federal securities law plays when interpreting

  the CSA.


                                     13
¶ 23   The Colorado Supreme Court has repeatedly said that while

  Colorado courts aren’t bound by federal law in interpreting the CSA,

  when provisions of the CSA parallel provisions of federal law, the

  “federal authorities that interpret provisions parallel to the [CSA]

  are highly persuasive.” Milne, 690 P.2d at 833; accord, e.g., Cagle v.

  Mathers Family Tr., 2013 CO 7, ¶ 19; Goss v. Clutch Exch., Inc., 701

  P.2d 33, 34-35 (Colo. 1985); Lowery v. Ford Hill Inv. Co., 192 Colo.

  125, 129-30, 556 P.2d 1201, 1204 (1976). But that may understate

  the degree of deference we should afford federal authorities

  construing parallel provisions. For the General Assembly has said

  that “[t]he provisions of [the CSA] and rules made under [the CSA]

  shall be coordinated with the federal acts and statutes to which

  references are made in [the CSA] and rules and regulations

  promulgated under those federal acts and statutes, to the extent

  coordination is consistent with both the purposes and the

  provisions of [the CSA].” § 11-51-101(3), C.R.S. 2019. We take this

  to mean that if there is a prevailing federal judicial interpretation of

  a parallel federal provision, we should follow that interpretation

  unless some material difference in language or an underlying




                                     14
  purpose or policy of the CSA affirmatively dictates otherwise. See

  Cagle, ¶¶ 20-27 (so applying federal case law).

¶ 24     So what does federal authority have to say about the third

  Howey factor?

¶ 25     In the leading case, Williamson, the Fifth Circuit explained

  that the pertinent economic reality under the third Howey prong is

  whether “the power retained by the investors is a real one which

  they are in fact capable of exercising.” 645 F.2d at 419. Thus, “[s]o

  long as the investor has the right to control the asset he has

  purchased, he is not dependent on the promoter or on a third party

  for ‘those essential managerial efforts which affect the failure or

  success of the enterprise.’” Id. at 421 (quoting Sec. & Exch. Comm’n

  v. Glenn W. Turner Enters., Inc., 474 F.2d 476, 482 (9th Cir. 1973)).

¶ 26     In recognizing that general partnership powers may be

  illusory, however, the court identified three tests for determining

  whether purported general partners are, in reality, dependent on

  the entrepreneurial or managerial skills of others. The party

  alleging that the interest is an investment contract must establish

  that




                                     15
          (1) an agreement among the parties leaves so
          little power in the hands of the partner or
          venturer that the arrangement in fact
          distributes power as would a limited
          partnership; or (2) the partner or venturer is so
          inexperienced and unknowledgeable in
          business affairs that he is incapable of
          intelligently exercising his partnership or
          venture powers; or (3) 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.

Id. at 424.5 Many federal courts of appeals have expressly adopted

these tests. See, e.g., Sec. & Exch. Comm’n v. Schooler, 905 F.3d

1107, 1112 (9th Cir. 2018); Sec. & Exch. Comm’n v. Shields, 744

F.3d 633, 644 (10th Cir. 2014); United States v. Leonard, 529 F.3d

83, 90-91 (2d Cir. 2008); Sec. & Exch. Comm’n v. Merch. Capital,

LLC, 483 F.3d 747, 755-66 (11th Cir. 2007); Stone v. Kirk, 8 F.3d

1079, 1086 (6th Cir. 1993); Rivanna Trawlers Unlimited v.

Thompson Trawlers, Inc., 840 F.2d 236, 241 (4th Cir. 1988). As has




5 The party claiming that the interest is an investment contract has
the burden of proof. See, e.g., Sec. & Exch. Comm’n v. Arcturus
Corp., 928 F.3d 400, 410 (5th Cir. 2019); Banghart v. Hollywood
Gen. P’ship, 902 F.2d 805, 808 (10th Cir. 1990).

                                 16
  this court. See, e.g., HEI I, ¶ 24; Feigin v. Dig. Interactive Assocs.,

  Inc., 987 P.2d 876, 882 (Colo. App. 1999).

¶ 27   On all this, the parties appear to agree; no party takes issue

  with Williamson’s characterization of the Howey test or with the

  three tests set forth in Williamson for determining whether an

  ostensible general partnership interest is actually an investment

  contract.6 The Commissioner and defendants part company,

  however, on secondary legal principles that put flesh on the bones

  of these general precepts.

                    3.    The Williamson Presumption

¶ 28   The strong presumption that a general partnership interest

  isn’t an investment contract — the presumption rejected by the

  division in HEI I — derives from the following passage in Williamson:

             [A]n investor who claims his general
             partnership or joint venture interest is an
             investment contract has a difficult burden to
             overcome. On 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. Such an investor must


  6 In 2011, the trial court ruled against the Commissioner on the
  first Williamson test. The Commissioner didn’t cross-appeal that
  ruling.

                                     17
           demonstrate that, in spite of the partnership
           form which the investment took, he was so
           dependent on the promoter or on a third party
           that he was in fact unable to exercise
           meaningful partnership powers.

645 F.2d at 424; see also id. at 425 (characterizing the presumption

as “an extremely difficult factual burden”). The court said this after

surveying federal cases dealing with similar interests; it summed up

by saying, “the courts that have ruled on the issue have held that a

general partnership or joint venture interest generally cannot be an

investment contract under the federal securities acts.” Id. at 421.

Although the court didn’t use the word “presumption” (as the HEI I

division pointed out), the existence of the presumption is the logical

conclusion from the court’s recognition of a “general” rule and

imposition of “an extremely difficult factual burden” to overcome the

general rule. Numerous federal circuit courts of appeals, including

the Fifth Circuit itself, have so recognized. See, e.g., Shields, 744

F.3d at 644; Merch. Cap., LLC, 483 F.3d at 755; Banghart v.

Hollywood Gen. P’ship, 902 F.2d 805, 807-08 (10th Cir. 1990);

Rivanna Trawlers Unlimited, 840 F.2d at 240-41; Youmans v. Simon,




                                  18
  791 F.2d 341, 346 (5th Cir. 1986); Odom v. Slavik, 703 F.2d 212,

  215 (6th Cir. 1983).7

¶ 29   The presumption is justified, these courts say, based on the

  powers typically granted to general partners. These often include

  the powers to participate in the management and control of the

  partnership, act on behalf of the partnership, bind the partnership

  by their actions, remove a managing partner or entity, and dissolve

  the partnership. General partners are also individually liable for

  the partnership’s liabilities. Sec. & Exch. Comm’n v. Arcturus Corp.,

  928 F.3d 400, 410 (5th Cir. 2019); Youmans, 791 F.2d at 346;

  Williamson, 645 F.2d at 421-22.

¶ 30   And because these partnership powers provide general

  partners with leverage and the ability to protect themselves, “[a]n

  investor who is offered an interest in a general partnership or joint

  venture should be on notice . . . that his ownership rights are

  significant, and that the federal securities acts will not protect him



  7As have state courts, including the Colorado Court of Appeals.
  See, e.g., Joseph v. Mieka Corp., 2012 COA 84, ¶ 17; Ak’s Daks
  Commc’ns, Inc. v. Md. Sec. Div., 771 A.2d 487, 497 (Md. Ct. Spec.
  App. 2001); State v. Kramer, 804 S.W.2d 845, 848 (Mo. Ct. App.
  1991).

                                    19
  from a mere failure to exercise his rights.” Williamson, 645 F.2d at

  422.

¶ 31     Recently, the Fifth Circuit summed up the rationale for the

  Williamson presumption as follows:

              [P]artners in a general partnership can guard
              “their own interests” with their “inherent
              [partnership] powers” and do not need
              protection from securities laws — they can “act
              on behalf of the partnership”; “bind their
              partners by their actions”; “dissolve the
              partnership”; and “are personally liable for all
              liabilities of the partnership.” General
              partners are, in short, “entrepreneurs, not
              investors.”

  Arcturus, 928 F.3d at 410 (citation omitted).8




  8 Another division of this court has expressed a similar rationale for
  the presumption:
            A general partnership provides its partners
            with an equal right in the management and
            conduct of the partnership business, and
            general partners are jointly and severally liable
            for the obligations of the general partnership.
            See §§ 7-60-115(1), 7-60-118(1), C.R.S. 2002.
            The Williamson ruling adheres to these
            principles in that a partnership interest is
            presumed not to be an investment contract to
            the extent that partners have a legal right to
            participate in the management of the
            partnership.
  Toothman v. Freeborn & Peters, 80 P.3d 804, 812 (Colo. App. 2002).

                                    20
¶ 32   This strong presumption that general partnership interests

  aren’t investment contracts is widely applied by federal and state

  courts alike. See, e.g., Schooler, 905 F.3d at 1112; Shields, 744

  F.3d at 643; Rivanna Trawlers Unlimited, 840 F.2d at 242;9 Gordon

  v. Terry, 684 F.2d 736, 741 (11th Cir. 1983); Slavik, 703 F.2d at

  215; Sec. & Exch. Comm’n v. Shiner, 268 F. Supp. 2d 1333, 1340-44

  (S.D. Fla. 2003); Great Lakes Chem. Corp. v. Monsanto Co., 96 F.

  Supp. 2d 376, 391 (D. Del. 2000); Sec. & Exch. Comm’n v. Telecom

  Mktg., Inc., 888 F. Supp. 1160, 1165 (N.D. Ga. 1995); Kline Hotel

  Partners v. Aircoa Equity Interests, Inc., 725 F. Supp. 479, 481 (D.

  Colo. 1989); Power Petroleum, Inc. v. P & G Mining Co., Inc., 682 F.

  Supp. 492, 493-94 (D. Colo. 1988); Roark v. Belvedere, Ltd., 633 F.

  Supp. 765, 767 (S.D. Ohio 1985); McConnell v. Frank Howard Allen




  9 Contrary to the division’s assertion in Rome v. HEI Resources, Inc.,
  2014 COA 160, ¶ 35 (HEI I), the Fourth Circuit hasn’t
  “inconsistently applied Williamson,” at least when it comes to
  general partnership interests. The case the division cited that
  didn’t apply the presumption, Bailey v. J.W.K. Props., Inc., 904 F.2d
  918 (4th Cir. 1990), dealt with an enterprise that “did not involve
  the formal structure and protection of a general partnership.” Id. at
  923 (distinguishing the contracts before the court from the general
  partnership interests at issue in Rivanna Trawlers Unlimited v.
  Thompson Trawlers, Inc., 840 F.2d 236 (4th Cir. 1988)).

                                    21
  & Co., 574 F. Supp. 781, 786 (N.D. Cal. 1983); Westlake v. Abrams,

  565 F. Supp. 1330, 1343 (N.D. Ga. 1983); Nutek Info. Sys., Inc. v.

  Ariz. Corp. Comm’n, 977 P.2d 826, 830 (Ariz. Ct. App. 1998); Corp.

  E. Assocs. v. Meester, 442 N.W.2d 105, 107 (Iowa 1989); Ak’s Daks

  Commc’ns, Inc. v. Md. Sec. Div., 771 A.2d 487, 497 (Md. Ct. Spec.

  App. 2001); Bahre v. Pearl, 595 A.2d 1027, 1031 (Me. 1991); Russell

  v. French & Assocs., Inc., 709 S.W.2d 312, 314 (Tex. App. 1986).10

¶ 33   Indeed, apart from one case taking an even more extreme view

  of general partnership interests as shielded from the securities

  laws, we haven’t found any published decision of any court holding

  that there is no such presumption: the Williamson presumption is

  prevailing federal law.11 This makes HEI I a true outlier. And given



  10 The Williamson presumption isn’t without critics. See Kenneth L.
  MacRitchie, General Partnerships and Similar Interests as
  “Securities” Under Federal and State Law, 32 Lincoln L. Rev. 29
  (2004-2005); J. William Callison, Changed Circumstances:
  Eliminating the Williamson Presumption that General Partnership
  Interests are Not Securities, 58 Bus. Law. 1373 (Aug. 2003). But it
  apparently hasn’t waned in popularity despite that criticism.
  11 The Third Circuit follows a stricter approach. If a general

  partnership agreement gives the usual general partnership powers
  to the general partners, then the partnership “interest does not
  qualify as a security primarily because the role of a general partner,
  by law, extends well beyond the permitted role of a passive
  investor.” Goodwin v. Elkins & Co., 730 F.2d 99, 103 (3d Cir. 1984).

                                   22
  that we must coordinate Colorado securities law with federal

  securities law, and that the Commissioner points to no purpose or

  policy of the CSA counseling otherwise in this context, we conclude

  that the HEI I division erred by rejecting the Williamson

  presumption. See § 11-51-101(3); Cagle, ¶ 27.

¶ 34   Nonetheless, the Commissioner argues that because Colorado

  courts have departed from federal law in the securities context, we

  should do so here. He cites only Viatica Management in support. In

  that case, the division concluded that units in a trust were

  investment contracts because the investors who bought the units

  “relied entirely” on the managerial efforts of others for profits. 55

  P.3d at 267. But contrary to the Commissioner’s assertion, the

  division didn’t reject any interpretation of federal law; it held that

  the case’s facts were distinguishable from those in the federal case

  on which the defendant relied. Id. at 266-67; see Cagle, ¶ 26

  (recognizing this basis for the holding in Viatica Management). And

  in any event, as we have just noted, the Commissioner doesn’t point

  to anything in the language of the CSA, or any policy underlying it,

  that dictates a course different from the one federal courts have

  charted for analyzing general partnership interests.


                                     23
¶ 35   That could be the end of the matter. But we nevertheless

  address HEI I’s four stated reasons for rejecting the presumption.

                        a.    Economic Realities

¶ 36   The prior division concluded that applying the presumption “is

  contrary to Colorado and federal law that requires courts to look at

  substantive economic realities, not form.” HEI I, ¶ 41. But the

  Williamson presumption reflects the economic realities of being a

  general partner; that status ordinarily carries with it considerable

  legal rights to control the venture. See Williamson, 645 F.2d at 424

  (“So long as the investor retains ultimate control, he has the power

  over the investment and the access to information about it which is

  necessary to protect against any unwilling dependence on the

  manager.”); Dig. Interactive, 987 P.2d at 881 (expressly recognizing

  that the Williamson framework is based on “economic reality”).

¶ 37   Courts applying the Williamson presumption don’t see any

  tension between it and the requirement to consider economic

  realities. To the contrary, they expressly acknowledge that

  economic realities control and see the presumption, and the tests

  that may be used to try to overcome it, as consistent with such

  realities. See, e.g., Arcturus, 928 F.3d at 410-11; Youmans, 791


                                    24
  F.2d at 345-46; Slavik, 703 F.2d at 216; Telecom Mktg., 888 F.

  Supp. at 1165; Roark, 633 F. Supp. at 767; McConnell, 574 F.

  Supp. at 785-86; Meester, 442 N.W.2d at 107.

                     b.   Applying the Presumption

¶ 38   The prior division said that it isn’t clear how courts are

  supposed to apply the presumption because “no court has

  articulated the presumption in a manner that enables trial courts to

  reliably apply” it. HEI I, ¶ 42. But courts across the country have

  been applying the presumption for decades, and we haven’t found

  any cases expressing difficulty in applying it. Presumptions aren’t

  uncommon in the law (as HEI I notes). We don’t think it likely that

  courts would have any difficulty applying this one. At bottom, it

  sets a high burden of factual proof for the one seeking to overcome

  it, and thus the inquiry ultimately comes down to whether the

  degree of control possessed by the ostensible general partners is

  real or illusory. Trial courts are perfectly capable of making such

  judgments.

                          c.   Policy Judgment

¶ 39   The prior division also said that, because “the resolution of

  what weight a presumption has and whether it disappears upon


                                    25
  presentation of sufficient rebuttal evidence depends on policy

  judgments,” it is the General Assembly’s prerogative to decide if it

  applies. Id. at ¶ 45. The General Assembly, however, has made a

  policy judgment: the CSA “shall be coordinated” with federal

  securities law “to the extent coordination is consistent with both the

  purposes and the provisions of this article.” § 11-51-101(3)

  (emphasis added). And the supreme court has held that the CSA’s

  purposes and provisions align with those of the federal securities

  acts. Cagle, ¶ 24. To put a finer point on it, the General Assembly

  has made a policy judgment to follow federal law, and the

  presumption is prevailing federal law. See id. at ¶¶ 20-27 (following

  federal case law interpreting federal statutes when interpreting the

  CSA).

                   d.    Necessity of the Presumption

¶ 40   The prior division believed that the presumption is “wholly

  unnecessary” because the party alleging that a general partnership

  interest is an investment contract carries the burden of proof and

  persuasion anyway. HEI I, ¶¶ 47-48. But the presumption

  provides a degree of certainty that is essential for business

  transactions. In forming or joining a general partnership, partners


                                    26
are put on notice that, so long as the partners’ powers are real, the

securities laws won’t protect them, see Arcturus, 928 F.3d at 413

(the joint venture agreements “clearly state that the venture is not a

security, putting the investors ‘on notice’ that ‘federal securities

acts’ will not protect them” (quoting Williamson, 645 F.2d at 422)),

and the presumption also gives promoters notice of the regulatory

requirements with which they must comply. In addition, the

presumption serves as a guard-rail in assuring that securities laws

aren’t turned into general antifraud provisions allowing general

partners to sue their copartners or the managers for alleged

securities violations. See Goodwin v. Elkins & Co., 730 F.2d 99,

113 (3d Cir. 1984) (“[T]he federal securities laws are not properly

invoked to protect one general partner from the deceit of his

copartners.”) (Seitz, C.J., concurring); see also Landreth Timber Co.

v. Landreth, 471 U.S. 681, 690 (1985) (the federal securities acts

are intended to protect “passive” investors, not “active

entrepreneur[s]”); Marine Bank v. Weaver, 455 U.S. 551, 556 (1982)




                                   27
  (“Congress, in enacting the securities laws, did not intend to provide

  a broad federal remedy for all fraud.”).12

¶ 41   In sum, we conclude that where the parties’ agreement

  purports to give participants rights typical of those possessed by a

  general partner, see Shields, 744 F.3d at 644, there is a strong

  presumption that the general partnership interests aren’t

  investment contracts. Because it is undisputed that the JVA gives

  partners partnership powers, the Williamson presumption applies in

  this case.

¶ 42   The trial court, bound of course by HEI I, didn’t apply the

  presumption. We therefore reverse the trial court’s judgment and

  remand for reconsideration. On remand, the court must make

  factual findings as to whether the interests are investment




  12In fact, this case shows how the Williamson presumption can
  make a difference. Applying the presumption, the trial court found
  that the general partnership interests aren’t investment contracts.
  On remand, following the prior division’s direction not to apply the
  presumption, the trial court found, on the same record, that the
  general partnership interests are investment contracts.

                                    28
  contracts under the second and third Williamson tests, applying the

  presumption, and based on the existing record alone.13

¶ 43   We next examine other relevant legal principles that must

  guide the court in addressing the second and third Williamson tests.

                   4.   Relevant Business Experience

¶ 44   In HEI I, the division held that under the second Williamson

  test “there must be substantial collective experience in the specific

  business of the venture such that the partners, as a whole, need

  not rely solely on the promoters or third parties for the success of

  the venture or to meaningfully exercise their partnership powers.”

  HEI I, ¶ 58 (emphasis added). On remand, the trial court found

  that the general partners collectively lacked venture-specific

  experience. (Before the first appeal, the trial court found that the

  general partners had sufficient general business experience to

  protect their interests by meaningfully exercising their powers.)




  13We realize that the trial court did this once before in 2013. But
  the court on remand took evidence in determining liability and
  remedies that may bear on these issues. And the court didn’t have
  the benefit of the guidance set forth below relating to the second
  and third tests.

                                    29
  Defendants contend that the HEI I division erred by requiring

  collective venture-specific experience. We agree.

¶ 45   In Williamson, the Fifth Circuit said that the relevant inquiry

  under the second test 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

  power.” 645 F.2d at 424 (emphasis added). True, the Fifth Circuit,

  in Long v. Schultz Cattle Co., 881 F.2d 129, 134 n.3 (5th Cir. 1989),

  later said that “the knowledge inquiry must be tied to the nature of

  the underlying venture.” But that isn’t the same as saying that the

  venture-specific experience is required. Rather, it means only that

  “the investors’ expertise must be considered in relation to the

  nature of the underlying venture.” Id. at 135.14

¶ 46   The Fifth Circuit much more recently addressed this issue in

  Arcturus. In discussing this statement from Long (a case which

  didn’t even involve a general partnership), the court said, “[t]his




  14In a post-Long decision, the Fifth Circuit pointed out that Long
  didn’t involve a joint venture, and therefore the interests in that
  case didn’t enjoy the presumption of active involvement. Nunez v.
  Robin, 415 F. App’x 586, 591 (5th Cir. 1991).

                                    30
  requirement . . . should not be read to suggest that investors

  necessarily need a specialized background. If the evidence shows

  that an investor can intelligently control his investment, then courts

  do not require specialized experience.” Arcturus, 928 F.3d at 417-

  18 (emphasis added).

¶ 47   So although venture-specific experience is unquestionably

  relevant, it isn’t necessarily required. What matters is whether,

  considering the nature of the business, the partners collectively

  possess sufficient knowledge and experience to intelligently exercise

  their powers. See, e.g., Robinson v. Glynn, 349 F.3d 166, 170-72

  (4th Cir. 2003) (specialized experience wasn’t required where

  investor, “a savvy and experienced businessman,” showed he was

  capable of managing his investment); Holden v. Hagopian, 978 F.2d

  1115, 1121 (9th Cir. 1992) (rejecting argument that partners

  weren’t able to intelligently exercise their partnership powers

  because they lacked specialized experience and stating that,

  instead, “[t]he proper inquiry is whether the partners are

  inexperienced or unknowledgeable in ‘business affairs’ generally”);

  Koch v. Hankins, 928 F.2d 1471, 1479 (9th Cir. 1991) (“While it is

  undisputed that none of the investors had prior experience in jojoba


                                    31
farming, that draws the question too narrowly.”); Deutsch Energy

Co. v. Mazur, 813 F.2d 1567, 1570 (9th Cir. 1987) (even though “it

appears to be an open question whether sophistication in one field

of business will always transfer to another,” Williamson looks to an

investor’s “level of general business expertise”); Youmans, 791 F.2d

at 347 (specialized experience wasn’t required where the plaintiff, a

physician who invested in real estate projects, had “also engaged in

a number of business transactions not connected with [the

defendants]”); Williamson, 645 F.2d at 425 (specialized experience

wasn’t required where an investor’s experience on the Frito-Lay

board was “business experience and knowledge adequate to the

exercise of partnership powers in a real estate joint venture”).15




15We recognize that Securities and Exchange Commission v. Shields,
another case on which HEI I relied, says that “[t]he experience and
knowledge referred to in Williamson ‘focus[es] on the experience of
investors in the particular business, not the general experience of
the partners.’” 744 F.3d 633, 647 (10th Cir. 2014) (quoting Sec. &
Exch. Comm’n v. Merch. Capital, LLC, 483 F.3d 747, 762 (11th Cir.
2007)). But as the Fifth Circuit recently made clear in Arcturus,
that reading of Williamson is incorrect.

                                  32
¶ 48   Courts have considered the following nonexclusive factors to

  determine whether the partners possessed sufficient knowledge and

  experience:

       (1)   Do the partners have prior business experience

             generally? See Arcturus, 928 F.3d at 419; Koch, 928 F.2d

             at 1479; Deutsch Energy Co., 813 F.2d at 1570;

             Youmans, 791 F.2d at 347.

       (2)   What kind of prior business experience do the partners

             have, not just as investors but as businesspeople (such

             as by holding executive positions in organizations)? See

             Robinson, 349 F.3d at 171; Williamson, 645 F.2d at 424-

             25.

       (3)   Are the partners otherwise financially sophisticated? See

             Arcturus, 928 F.3d at 420; Koch, 928 F.2d at 1479.

       (4)   Did the partners represent that they considered

             themselves experienced in business affairs generally?

             See Arcturus, 928 F.3d at 420; Holden, 978 F.2d at 1121.

       (5)   Do the partners have prior experience in the same type of

             enterprise? See Arcturus, 928 F.3d at 419; Deutsch

             Energy Co., 813 F.2d at 1570.


                                   33
(6)   Is the nature of the venture such that venture-specific

      experience is essential to enable the partners to

      intelligently exercise their powers? See Koch, 928 F.2d at

      1478-79.

(7)   Did the partners consult advisors or legal counsel for

      advice or assistance, or have they indicated that they

      will? See Arcturus, 928 F.3d at 419; Robinson, 349 F.3d

      at 171; Banghart, 902 F.2d at 808 n.5; Rivanna Trawlers

      Unlimited, 840 F.2d at 242 n.10; Deutsch Energy Co., 813

      F.2d at 1570.

(8)   Did the partners in fact exercise their partnership

      powers? See Arcturus, 928 F.3d at 419; Robinson, 349

      F.3d at 171; Koch, 928 F.2d at 1474; Rivanna Trawlers

      Unlimited, 840 F.2d at 242; Casablanca Prods., Inc. v.

      Pace Int’l Res., Inc., 697 F. Supp. 1563, 1567 (D. Or.

      1988).

(9)   Did the partners previously invest in one of the

      defendant’s businesses? See Arcturus, 928 F.3d at 420;

      Williamson, 645 F.2d at 425.




                             34
       (10) How did the partnership acquire its members? See

             Arcturus, 928 F.3d at 418.

       (11) To what extent do the partners have meaningful access to

             information about the venture? See Sec. & Exch. Comm’n

             v. Sethi, 910 F.3d 198, 205 (5th Cir. 2018); Shields, 744

             F.3d at 648.16

¶ 49   On remand, the trial court must make new factual findings

  under the second Williamson test, applying the strong presumption

  that a general partnership interest isn’t an investment contract and

  analyzing the partners’ collective experience under the foregoing

  factors and any other factors relevant given the nature of the

  venture.

                   5.   Replaceability of the Manager

¶ 50   Defendants also contend that the trial court erred by

  misconstruing the third Williamson test.17 Specifically, they argue

  that the court erred by narrowly focusing on whether any of the




  16 We don’t mean to imply that these factors are exclusive.
  Depending on the circumstances, other facts may be relevant to
  this inquiry. Some of these factors, such as access to information,
  may also be relevant to the analysis under the third Williamson test.
  17 The HEI I division didn’t address the third Williamson test.



                                   35
  general partners themselves possessed the skills necessary to

  replace the managing partner (HEI or HEDC); that is, whether any

  of them could step into the managing partner’s shoes. However, it

  isn’t entirely clear from the record if the court, in determining

  whether the partners were dependent on HEI and HEDC’s unique

  knowledge or abilities, considered only the partners themselves as

  potential replacements.

¶ 51   We agree with defendants that any such focus would be “too

  narrow. Under this part of Williamson, investors must show that

  ‘there is no reasonable replacement’ for the manager.” Holden, 978

  F.2d at 1123 (quoting Williamson, 645 F.2d at 423). Does the

  managing partner have “some particular non-replaceable

  expertise?” Williamson, 645 F.2d at 423. Or does the managing

  partner have some “unique understanding” of the subject of the

  venture? Id. Or does the managing partner have some “unusual

  experience and ability in running that particular business” without

  which the venture can’t succeed? Id. In short, are the partners “so

  dependent on a particular manager that they cannot replace him or

  otherwise exercise ultimate control?” Id. at 424.




                                    36
¶ 52   On remand, the trial court should again make findings on this

  test, applying the strong presumption and taking into account

  Williamson’s caution that what ultimately matters is whether the

  partners realistically could exercise their power to replace the

  manager if they wanted to do so.

                   6.    “Catch-All” Economic Realities

¶ 53   On remand, the trial court analyzed whether the interests are

  investment contracts by looking at “other economic realities”

  independently of the Williamson tests. It did so because the division

  in HEI I told it to determine whether the “interests are securities

  under the second and third Williamson factors and any other

  ‘catch-all’ economic realities.” HEI I, ¶ 61.

¶ 54   On appeal, defendants challenge the trial court’s findings,

  arguing that the court “failed to separately evaluate the economic

  realities evidence that was particular to” the specific joint venture at

  issue, referred to as LO9, and “gave undue weight to certain facts

  that, in reality, had little or no bearing on the parties’ ability to

  exercise control.” They also argue that the court’s approach was, in

  certain respects, inconsistent with Williamson.




                                      37
¶ 55   Because the trial court (understandably following HEI I) didn’t

  apply the Williamson presumption, we must reverse its

  determination on this issue as well. To assist the court on remand,

  we offer the following guidance on the role of “other economic

  realities” in this context.

¶ 56   In HEI I, the division said, “[o]ther economic realities

  underlying the transaction may also ‘give rise to such a dependence

  on the promoter or manager that the exercise of partnership powers

  [is] effectively precluded.’” Id. at ¶ 25 (quoting Williamson, 645 F.2d

  at 424 n.15). We don’t quarrel with the HEI I division’s conclusion

  that there may be considerations in addition to the three Williamson

  tests that bear on whether an ostensible general partnership

  interest is an investment contract. Williamson said so. Williamson,

  645 F.2d at 424 & n.15 (referring to the three tests as “example[s]”

  and noting that those were “the only factors relevant to the issue

  that are at all implicated by the facts of this case”); see also

  Arcturus, 928 F.3d at 411. But if facts — i.e., economic realities —

  lead to the conclusion that the interests aren’t investment contracts

  under the Williamson tests, those same facts shouldn’t be

  repackaged under a “catch-all economic realities” test to reach a


                                     38
  contrary conclusion, absent some articulable reason akin to the

  Williamson tests (and consistent with the underlying goal of the

  Williamson tests) to do so. Applying the “catch-all economic

  realities” in an amorphous way, untethered to the goal of

  determining whether the general partners’ power “is a real one

  which they are in fact capable of exercising,” Williamson, 645 F.2d

  at 419, would significantly impair the utility of the entire Williamson

  framework.

¶ 57   The cases on which HEI I relied when discussing the economic

  realities test — Digital Interactive, Toothman, and Joseph v. Mieka

  Corp., 2012 COA 84 — actually don’t have much to say about

  looking outside the Williamson tests.

¶ 58   In Digital Interactive, the division recognized the three

  Williamson tests and turned immediately to facts — such as who

  the interests were marketed to and the number of partners — that

  it thought relevant to those tests. 987 P.2d at 882. So did the

  division in Mieka Corp., ¶ 20 (looking to “the sophistication and

  vulnerability of the solicited investors” and the partners’ lack of

  expertise, among other things).




                                    39
¶ 59   Toothman involved a limited liability partnership, not a general

  partnership, and because of differences in the two forms of

  enterprise, the division rejected the entire Williamson framework.

  80 P.3d at 812-13. Its analysis of various facts therefore says little,

  if anything, about general partnerships, and certainly doesn’t

  support the notion that a court must always apply a general “other

  economic realities” test even when the economic realities-based

  Williamson tests are sufficient.

¶ 60   All this is to say that (1) many, perhaps all, of the facts

  analyzed by the trial court as “other economic realities” are relevant

  to one or more of the Williamson tests and (2) if the economic

  realities of the case need to be accounted for in some way in which

  the Williamson tests prove inadequate, that needs to be articulated

  in terms of some relatively concrete principle that will assist the

  court in deciding whether the partners were “led to expect profits

  derived from the entrepreneurial or managerial efforts of others.”

  Toothman, 80 P.3d at 811; see Howey, 328 U.S. at 298-99;

  Williamson, 645 F.2d at 417-18.




                                     40
                        III.     Conclusion

¶ 61   The judgment is reversed and the case is remanded to the trial

  court to redetermine whether the joint venture interests are

  investment contracts under the second and third Williamson tests,

  consistent with the views stated herein. We acknowledge the trial

  court’s commendable efforts in this case. And we acknowledge that

  it likely frustrates the court to be instructed to do one thing and

  then be told to do something else. But we have a duty to

  independently examine the appeal’s merits notwithstanding the

  prior division’s decision. Doing so leads us to conclude that the

  trial court must once more resolve the threshold issue of whether

  the interests in the joint ventures are investment contracts.18

       JUDGE WELLING and JUDGE HAWTHORNE concur.




  18We decline defendants’ invitation to make this determination in
  the first instance.

                                    41
