Why “Free” Internet Stock Offerings Aren’t Really Free, and May Not Be Legal
by Joel Michael Schwarz

How much should an investor pay for a share of stock in Yahoo! or America Online? As publicly traded companies, an investor need only consult the stock charts in any newspaper to determine the value the market has placed on these shares. But what about a share of stock in a small non–public start–up Internet company? How much should someone pay for, and how can an “investor” assign value to, a share in such a company?

Since Travelzoo.com first offered to distribute three “free” shares of its stock to individuals who registered on its Web site and provided personal information, numerous start–up Internet companies have implemented share giveaway programs. Additionally, in an apparent effort to capitalize on the frenzy to own stock in anything that ends in a “dot com,” some Internet companies have expanded on Travelzoo’s concept, offering sweepstakes, where lucky winners can win shares of stock, and referral programs, where people can earn shares in return for directing new members to a Web site.1 But is this stock really free? And what statutes should companies operating these programs take into consideration?

What Value do Individuals Provide When Registering for Share Giveaway Programs?

An early 1999 poll of Chief Technology Officers from some of the top technology firms in the country revealed that over 60% of those surveyed believed that personal information collected from Internet consumers was “critical to their business success.”2 In essence, this poll confirmed what the e–commerce industry has known for some time: personal information is a valuable marketing commodity. According to one estimate, armed with this personal information, “direct–marketing–generated electronic commerce could rise to $30 billion by 2002.”3

In addition to utilizing personal information for marketing purposes, many companies also sell it, securing two streams of revenue from the very same data. “Indeed, with profit margins of up to sixty percent, some companies reportedly earn more from selling customer lists than from selling their own goods.”4As John Hagel, III, the coauthor of “Net Worth” has surmised, “[t]he most valuable economic asset of these Internet businesses is the profiles—the ability to capture information about the customer and use it for economic purposes. The profile is really the core business assumption.”5

Although some Internet start–up companies require visitors to provide nothing more than a name, street address, and e–mail address during the registration process, even this basic information can arguably provide a number of valuable marketing benefits. First, it generates a list of active e–mail addresses to which a company can send information and marketing offers for a fraction of what it would cost to market to the same people by traditional mail.6 Specialized Web sites gain an added benefit from registering visitors because special interest members are prime advertising targets. For example, a Web site run by a company called Popular Link, which sells guns, knives and other similar collectibles, advises that the “site [is] for mature and ‘cool’ people. If you are in anyway offended by our products, do not apply for free shares.” Thus, it is reasonable to conclude that a healthy percentage of those who register with Popular Link are interested in swords, guns, knives and the like, making them ideal candidates for direct marketing by companies selling those products.

The value of personal information increases as it becomes more detailed. For example, a site called My Own Empire requests information about visitors’ sex, birth date, income, occupation, and educational level. Each new piece of personal information helps to create an ever more valuable (and much sought after) database which can inform the company’s own marketing programs, attract additional retail partners and advertisers, or be resold to third party marketers. Indeed, at one point, My Own Empire freely disclosed the value of this information on its Web site:

MyOwnEmpire makes money from: (1) [advertisements]; (2) reselling great products and services just like other portals do; (3) sending you to sites that pay us a commission for listing them just like other portals do. The difference is we TELL you when we are making money off of you instead of pretending we are presenting information just to be helpful.... The more we know about you, the more relevant ads we can show you. The more relevant the ad we show you, the more advertisers are willing to pay [sic] bigger bucks for that ad because they know there is a chance you’ll actually be interested.

Because of this value, many businesses have gone to great lengths to acquire and utilize personal information to their competitive advantage, sometimes at the peril of violating federal or state law. For example, in February 1999, GeoCities was sanctioned by the Federal Trade Commission for selling valuable personal information collected from its members, despite its posted privacy policy assuring visitors that it would keep this information confidential.7 Similarly, in November 1999, Real Networks found itself the subject of irate consumer sentiment (and a number of class–action lawsuits) when it was discovered that the company had been assigning identification numbers to its software. Those numbers enabled Real Networks to track the listening habits of its Real Jukebox users and create detailed information profiles with substantial marketing value.8

Acknowledging the growing value of this information, and its occasional misuse, Congress has introduced a number of bills aimed at protecting personal information and regulating its collection, maintenance and distribution. For example, as of late April, the Consumer Internet Privacy Protection Act of 1999 (H.R. 313),9 the Children’s Privacy Protection and Parental Empowerment Act of 1999 (H.R. 369),10 and the Financial Information Privacy Act of 1999 (H.R. 30.IH; S. 187.IS),11 were all pending.

As further proof that the value of personal information has become integral to the success of some businesses, consider the 1999 case of U.S. West, Inc. v. F.C.C.12 U.S. West and a number of other telecommunications providers disputed FCC regulations that required “telecommunications companies, in most instances, to obtain affirmative approval from a customer before ... [using] that customer’s CPNI [customer proprietary network information] for marketing purposes.”13 “CPNI” consists not so much of data explicitly supplied by a customer, but rather of “highly personal data ... gathered only as a byproduct of subscribing to [telephone] services—without the subscribers’ explicit permission.”14

U.S. West (along with a coalition of telecommunication providers) challenged the restrictions placed on the use of CPNI on two grounds. Predictably, they argued that the regulations violated the First Amendment. More significantly, they argued that CPNI represented “valuable property” belonging to the carriers, and that the FCC’s prohibition on the use of this information “greatly diminish[ed] its value,” thereby rising to the level of a “taking” in violation of the Fifth Amendment.15 Since the court found that the regulations violated the First Amendment, it never addressed the Fifth Amendment challenge. Nonetheless, the argument advanced by U.S. West shows that corporate America has begun to acknowledge and attribute “legally significant value” to consumers’ personal information.

In addition to generating a valuable database of personal information, stock giveaway programs also provide other benefits to the offering companies. As one new Internet company disclosed in its registration statement, “the principal competitive factors” that an Internet start–up company may contend with are: “number of members;... quality of merchandise and retailers;... brand recognition; member loyalty;... [and] broad demographic focus....”16 Share giveaway programs promote the goals of increasing Web site membership and fostering member loyalty because “equity ownership in [a] company will help establish [the company] as a preferred destination among web users” and will help “to rapidly attract a sizeable membership base.”17 Likewise, these programs can further the goal of enhancing brand recognition. Finally, share giveaway programs facilitate the sale of merchandise to a broad demographic group of individuals. As My Own Empire elaborates on its Web site, “Internet companies are after one thing, your eyeballs.”

The SEC’s Position on Share Distribution Programs

Probably one of the most widely publicized issues surrounding Internet–based share giveaway programs has been whether Securities Act registration requirements apply to them. Although this issue is of relatively recent vintage in the Internet context, questions regarding the applicability of registration requirements to corporate spin–off programs (a comparable type of transaction in many respects) date back over a quarter of a century.

The key registration provision of the Securities Act is Section 5(c), which states that “[i]t shall be unlawful for any person, directly or indirectly, to ... offer to sell or offer to buy ... any security, unless a registration statement has been filed as to such security....” Section 2(a)(3) of the Securities Act provides that “[t]he term ‘sale’ or ‘sell’ shall include every contract of sale or disposition of a security or interest in a security, for value.”

SEC v. Harwyn Industries

Application of Securities Act registration requirements to corporate share giveaways was first challenged in 1971 in SEC v. Harwyn Industries Corp.18 In that case, “the Securities and Exchange Commission ... [sought] to plug up what some have treated as a loophole in the federal securities laws permitting a company, by ‘spinning–off’ its subsidiary’s shares to the parent’s stockholders without registration, to convert the subsidiary into a public corporation whose unregistered shares would be actively traded on the market.”19

The scheme utilized by Harwyn Industries occurred in three stages. First, Harwyn would incorporate a subsidiary, and then enter agreements whereby the new subsidiary would acquire the assets of private companies in exchange for controlling interests in the subsidiary. Second, Harwyn would effect a ‘spin–off’ distribution of the unregistered shares of the subsidiary to Harwyn shareholders. That distribution facilitated the third stage of the scheme: “the development of an over–the–counter trading market in the unregistered shares thus spun–off.”20

In reviewing the propriety of Harywn’s issuance of these spin–off shares, the court first contrasted Harwyn’s spin–off with a conventional stock dividend: “Where a conventional stock dividend of its own shares is distributed by a public company that has complied with the registration requirements of the 1933 Act, subsequent purchasers of the shares have the benefit of detailed financial information about the company making possible informed investment decisions on their part.”21 By contrast, Harywn’s spin–off “convert[ed] a Harwyn subsidiary into a publicly held company, with the shares thus distributed to outside stockholders” without the benefit of detailed financial information about the company.22

The court then considered whether the spin–offs constituted sales as defined in Section 5 of the Securities Act. The court noted that the defendants received two distinct benefits from the transactions. First, the company avoided registration costs. Second, the individual officers enhanced their ability to market or hypothecate their shares, and the company enhanced its ability to finance the subsidiaries’ operations, due to “the existence of an active trading market at definite prices.” Because of those benefits, the defendants received “value” from the spin–offs and a sale of shares was found to have occurred. Rejecting Harwyn’s argument that the distribution of unregistered shares was a stock dividend, not a sale, since the value did not come directly from the recipients of the shares, the court considered the “entire transaction” and concluded that the spin–offs were “intimately” tied to the asset purchase agreements, and that those agreements contemplated the infusion of new value into the subsidiaries and the eventual public trading of their shares.23

SEC v. Datronics Engineers

The distribution of unregistered stock through corporate spin–offs was again challenged two years later in SEC v. Datronics Engineers, Inc.24 Like the defendants in Harwyn, the Datronics defendants argued that the distribution of shares constituted “a dividend parceled out to stockholders,” and not a sale, since the distribution was free and Datronics received no value directly from the shareholders in return. Nonetheless, the Fourth Circuit looked to the “entire transaction” and found that value accrued to the defendants because the distribution created a market for the stock, enabling the defendants to sell their shares almost immediately after the spin–offs were completed. Additionally, “the stock retained by Datronics was thereby given an added increment of value.”25

Capital General Corp.

More than a decade after the Harwyn and Datronics decisions, the SEC was once again called upon to deal with the issue of corporate spin–offs, this time by issuing a Cease and Desist Order in In the Matter of Capital General Corp.26 In this case, Capital General advertised that it “had publicly–held issuers available for merger.” As a result of these solicitations, Capital General was able to transfer control of 36 subsidiaries to the promoters of private companies in exchange for money and the retention of a “substantial percentage of stock in each of the issuers.” Once a merger between a privately–held company and a Capital General subsidiary was completed, Capital General would distribute the newly–issued stock to its shareholders and list it in the pink sheets or on the National Association of Securities Dealers’ OTC Bulletin Board.27

Like the defendants in Harwyn, Capital General argued that its corporate spin–offs did not implicate Securities Act registration requirements because stockholders received new stock for free. Relying principally upon the Harwyn and Datronics analysis of the “entire transaction,” the SEC responded that “while the spin–off itself might not be a Securities Act distribution, ‘the entire process including the redistribution in the trading market which can be anticipated and which may indeed be the principal purpose of the spin–off, can have that consequence.’”28

Share Giveaway Programs

Moving ahead approximately six years post–Capital General, the issue of registering stock distribution programs again arose, this time in the context of “free” share giveaway programs implemented by Internet companies. In order to avoid the pitfalls of failing to register, however, a number of companies wrote to the SEC seeking no–action letters.29 The general premise of these requests for exemptions from Securities Act registration requirements was that completing a registration form did not constitute the provision of “value” for purposes of Section 2(3), so there was no Section 5 sale of stock warranting registration. The SEC did not accept this argument. Without citing to any legal precedent, the SEC consistently denied no–action relief because “the issuance of securities in consideration of a person’s registration on or visit to an issuer’s Web site would be an event of sale within the meaning of section 2(a)(3) of the Securities Act of 1933.”30

In spite of the SEC’s well–publicized position, a number of Internet companies, including WowAuction and WebWorks Marketing, implemented and operated share giveaway programs without registering.31 In response, on July 21, 1999, the SEC issued four Cease and Desist Orders.32 Within these Orders, the SEC attempted to answer the question first posed by Vanderkam and Sanders in its no–action letter request, namely how requiring the recipient of “free” stock to register on a Web site would constitute the provision of value necessary to establish a “sale” of securities so as to implicate Section 5 of the Securities Act.

Citing to Capital General and Harwyn, the SEC noted that although the Internet companies did not receive monetary consideration from the share recipients, value could nonetheless be found by looking to the entire transaction: “[A] gift of stock is a ‘sale’ within the meaning of the Securities Act when the purpose of the ‘gift’ is to advance the donor’s economic objectives rather than to make a gift for simple reasons of generosity.”33 Issuing companies received value because their distributions created a market for their shares and, in some cases, generated interest in their future planned IPOs.34 The SEC also noted that the issuance of stock through Internet–based share distribution programs helped to provide value unique to the Internet medium, including advertising the Web sites, increasing brand recognition, enhancing the sales of products, and attracting people interested in investing capital in fledgling Internet companies.

This analysis seems somewhat constrained, however, because unlike the share recipients in Harwyn and its progeny, the recipients in Internet–based share giveaway programs do in fact provide value directly to the issuing companies. Share giveaway programs encourage people to visit the sponsoring Web sites, thereby increasing the coveted Web traffic and number of unique hits. Moreover, these programs require individuals to provide personal information during the registration process, and that information itself has value. In light of this very significant difference, it would appear to be unnecessary for the SEC to rely on Harwyn and its progeny and take a broader view of the “entire transaction” in order to find value. The question then remains, does the SEC agree with corporate America and a multitude of other regulators that a collection of personal information has “legally significant value”?

Internet–based Share Distribution Programs and State Criminal Laws

In addition to potentially violating federal securities law, various aspects of Internet–based share giveaway programs could also implicate state criminal laws.

Pyramid and Chain Distribution Statutes

Although “referral programs,” which offer registered members the opportunity to accrue additional shares of stock in return for referring others to the sponsoring Web site, may seem innocuous, considering the value of the personal information supplied, these programs could potentially be viewed as illegal “chain distribution” or “pyramid” schemes. Virtually every state in the country outlaws these programs, which involve the payment of something of value in exchange for the opportunity to receive compensation for recruiting new members. In other words, illegal pyramids and chain distribution schemes primarily focus on recruiting others in return for headhunting fees. By contrast, legal multilevel marketing programs focus on the actual sale of goods on a commission basis; referrals only enhance the distribution process.35

Generally, in order to qualify as a pyramid, a program must satisfy the following four criteria:36

1. A pyramid involves the distribution of property or merchandise.
2. Pyramid participants must pay “valuable consideration” to enroll in the program.
3. Pyramid participants must recruit one or more others who also enroll in the program.
4. Pyramid participants must receive a “thing of value” in return for their recruiting efforts.

Inasmuch as Internet–based referral programs are designed to distribute shares of company stock, they could potentially be classified as programs for the distribution of property, thereby satisfying the first element of a pyramid.

With regard to the second element, we must ascertain whether the registrants who enroll in Internet–based referral programs provide anything of “legally significant” value. Just as the application of Securities Act registration requirements hinges on the SEC’s definition of “value,” the application of many state pyramid statutes hinges on the consideration, or value, provided by the referring individual and his or her references. As discussed above, it is certainly not unreasonable to conclude that when a person visits a Web site and registers by providing personal information, that person provides “valuable consideration” to the sponsoring company.

The third element in the pyramid test requires that the newly recruited individual also enroll as a participant in the program. We can assume that this will occur with Internet–based referral programs since only registered visitors can receive shares of stock.

Finally, since Internet referral programs reward members for referrals only after a new recruit identifies the referring member, the requirement that an individual receive a thing of value in return for recruiting efforts would appear to be satisfied.

State Gambling Laws

As an alternative means of promoting traffic to their Web sites and securing valuable personal information, some Internet companies have integrated contests into their stock distribution programs. Proceeding again from the presumption that traveling to a Web site and providing personal information constitutes the provision of legally significant value, these contests could potentially be classified as lotteries or sweepstakes, which are strictly regulated by state gambling statutes.

Generally, in a lottery:37

1. Players pay or agree to pay something of value for chances.
2. Winners are determined by a drawing or by some other method based upon the element of chance.
3. Winners receive something of value.

The first element of the test requires that a player—in this case a Web site visitor—pay or agree to pay something of value for chances. As discussed previously, an individual giving personal information to register on a Web site could be viewed as having “paid” something of value for a chance—the chance being the entry into the contest to win shares of stock.

The second element of a lottery generally requires that the winners be determined by chance. As Bonus Boulevard, one company operating a stock distribution contest, discloses in its SEC registration filing, “100,000 Class A shares will be awarded to one member who is selected at random as the ‘grand prize’ winner of our sweepstakes contest.”38 Other programs select winners in a similar fashion.

Finally, lottery winners must receive “something of value.” Arguably, shares of stock, although not yet publicly traded, possess some value. Indeed, many sponsoring companies go to great pains to tout the value of their stock and to encourage people to register for shares.39 Thus, the delivery of shares to winning contestants could satisfy this final prong, thereby rendering share giveaway programs “lotteries” under state law.

Conclusion

Although it may be premature to judge whether the SEC’s actions will have the long–term effect of convincing companies to register their share giveaway programs, some companies have apparently taken notice. For example, at least two online companies, “DoctorSurf.com Inc. of Largo, Fla., and You Network Corp. of New York—have quietly received the green light to give away SEC–registered shares to surfers signing up on their web sites.”40

Merely complying with federal securities laws, however, does not in any way guarantee compliance with other potentially applicable statutes. As public outcry over privacy concerns continues to grow, regulators and prosecutors could eventually crack down on the collection of personal information through these share giveaway programs and the subsequent use of that data. In such an instance, states may look to any means available to them, including the enforcement of pyramid scheme and lottery prohibitions. Moreover, share giveaway programs could be imperiled by the restrictive privacy laws that many state legislatures are introducing. Earlier we considered whether the SEC truly attributes legally significant value to a collection of personal information. A regulatory crackdown would present the converse question: would fledgling Internet companies continue to implement share giveaway programs if they were prohibited from using the personal information they collected?

Yet another consideration is that, while the SEC’s crackdown on share giveaway programs has apparently had some effect in the United States, these programs have now begun to cross the Atlantic. For example, in the United Kingdom, “themutual.net,” an Internet service provider that offers free access to the Web, “netted more than 115,000 potential subscribers in July [1999] with an offer of free ‘units’ that will be transformed into shares when the company goes public.”41 Thus, while it may be axiomatic that there is no such thing as a free lunch, so long as stock markets continue to reward “dot.com” investors with hefty premiums, it would appear that people are willing to assume the illusion of free stock.

[Editor’s Note: A more detailed version of this article, entitled “Looking a Gift Horse in the Mouth: An Analysis of Free Internet Stock Offerings ,” will appear in Volume Six of THE MICHIGAN TELECOMMUNICATIONS & TECHNOLOGY LAW REVIEW, which may be accessed at http://www.mttlr.org/volsix/schwarz.html.]