dissenting:
The question in this case is straightforward. Is there sufficient evidence in the record to establish that defendants, sellers of securities who claim an exemption from securities registration requirements under 71 Okla.Stat.Ann. § 401(b)(15), have carried their burden of proving that each and every investor was capable of evaluating the risk of the investment and'that each and every investor was capable of bearing the economic risk of the investment? The evidence offered on this point consisted exclusively of Mr. Keith’s testimony that all the investors initially contacted him, on the advice of friends, seeking to invest, and that none of the securities were sold on installment. If this kind of testimony alone could establish the exemption, the registration requirements of the Act would be emasculated. In view of the way this exemption has been treated by the Oklahoma cases, I do not believe we can properly treat this as sufficient evidence on these two critical issues. See Lambrecht v. Bartlett, 656 P.2d 269 (Okla.1982), and Parrish v. Ben-Jon Oil Co., 666 P.2d 1308 (Okla.Ct.App.1983).
The defendants in this case had the burden of proving all elements of the claimed exemption, including the sophistication of each investor. Parrish, 666 P.2d at 1309; Lambrecht, 656 P.2d at 272. Their evidence simply did not meet this burden. Indeed, Mr’. Keith admitted that he had not even spoken with some of the investors. Record, vol. 4, at 148-50. After examining the decision of the trial court, it is apparent that what impressed the court was not the sophistication of the investors but rather the lack of sophistication of the sellers of the securities. There is nothing in the Oklahoma cases to suggest that this criterion has any bearing on the determination of whether the very limited 401(b)(15) exemption is available.
I would reverse the decision of the trial court.