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In United Housing v Foreman, a sale of stock was considered not to be a securities transaction, even though a stock is explicitly a security.

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The court determined the "stock" was not a security. Calling something "stock" creates a rebuttable presumption that it's a security but the purchasers of the co-op "stock" didn't have any possible expectation of profit (the "stock" couldn't appreciate in value, would not pay dividends, was non-transferable, etc.) so it failed the Howey test. Merely calling something stock does not make it so.

You might find SEC v Lauer[1] interesting. Where a non-existent hypothetical investment was determined to be a security. As well as SEC v Edwards[2], where a fixed-rate leaseback agreement for payphones was determined to be a security.

[1] https://caselaw.findlaw.com/us-7th-circuit/1054989.html

[2] https://caselaw.findlaw.com/us-11th-circuit/1156201.html

Ah. Yes I think Foreman was a bad example of what I was trying to get at.

I think my main point was that if Howey had 100 fungible orange groves, and one was sold as a security and 99 were sold straight up, that wouldn't make all 100 orange groves as a security, would it?

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