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Nathan Reiff

Nathan Reiff

3 years ago

Howey Test and Cryptocurrencies: 'Every ICO Is a Security'

What Is the Howey Test?

To determine whether a transaction qualifies as a "investment contract" and thus qualifies as a security, the Howey Test refers to the U.S. Supreme Court cass: the Securities Act of 1933 and the Securities Exchange Act of 1934. According to the Howey Test, an investment contract exists when "money is invested in a common enterprise with a reasonable expectation of profits from others' efforts." 

The test applies to any contract, scheme, or transaction. The Howey Test helps investors and project backers understand blockchain and digital currency projects. ICOs and certain cryptocurrencies may be found to be "investment contracts" under the test.

Understanding the Howey Test

The Howey Test comes from the 1946 Supreme Court case SEC v. W.J. Howey Co. The Howey Company sold citrus groves to Florida buyers who leased them back to Howey. The company would maintain the groves and sell the fruit for the owners. Both parties benefited. Most buyers had no farming experience and were not required to farm the land. 

The SEC intervened because Howey failed to register the transactions. The court ruled that the leaseback agreements were investment contracts.

This established four criteria for determining an investment contract. Investing contract:

  1. An investment of money
  2. n a common enterprise
  3. With the expectation of profit
  4. To be derived from the efforts of others

In the case of Howey, the buyers saw the transactions as valuable because others provided the labor and expertise. An income stream was obtained by only investing capital. As a result of the Howey Test, the transaction had to be registered with the SEC.

Howey Test and Cryptocurrencies

Bitcoin is notoriously difficult to categorize. Decentralized, they evade regulation in many ways. Regardless, the SEC is looking into digital assets and determining when their sale qualifies as an investment contract.

The SEC claims that selling digital assets meets the "investment of money" test because fiat money or other digital assets are being exchanged. Like the "common enterprise" test. 

Whether a digital asset qualifies as an investment contract depends on whether there is a "expectation of profit from others' efforts."

For example, buyers of digital assets may be relying on others' efforts if they expect the project's backers to build and maintain the digital network, rather than a dispersed community of unaffiliated users. Also, if the project's backers create scarcity by burning tokens, the test is met. Another way the "efforts of others" test is met is if the project's backers continue to act in a managerial role.

These are just a few examples given by the SEC. If a project's success is dependent on ongoing support from backers, the buyer of the digital asset is likely relying on "others' efforts."

Special Considerations

If the SEC determines a cryptocurrency token is a security, many issues arise. It means the SEC can decide whether a token can be sold to US investors and forces the project to register. 

In 2017, the SEC ruled that selling DAO tokens for Ether violated federal securities laws. Instead of enforcing securities laws, the SEC issued a warning to the cryptocurrency industry. 

Due to the Howey Test, most ICOs today are likely inaccessible to US investors. After a year of ICOs, then-SEC Chair Jay Clayton declared them all securities. 

SEC Chairman Gensler Agrees With Predecessor: 'Every ICO Is a Security'

Howey Test FAQs

How Do You Determine If Something Is a Security?

The Howey Test determines whether certain transactions are "investment contracts." Securities are transactions that qualify as "investment contracts" under the Securities Act of 1933 and the Securities Exchange Act of 1934.

The Howey Test looks for a "investment of money in a common enterprise with a reasonable expectation of profits from others' efforts." If so, the Securities Act of 1933 and the Securities Exchange Act of 1934 require disclosure and registration.

Why Is Bitcoin Not a Security?

Former SEC Chair Jay Clayton clarified in June 2018 that bitcoin is not a security: "Cryptocurrencies: Replace the dollar, euro, and yen with bitcoin. That type of currency is not a security," said Clayton.

Bitcoin, which has never sought public funding to develop its technology, fails the SEC's Howey Test. However, according to Clayton, ICO tokens are securities. 

A Security Defined by the SEC

In the public and private markets, securities are fungible and tradeable financial instruments. The SEC regulates public securities sales.

The Supreme Court defined a security offering in SEC v. W.J. Howey Co. In its judgment, the court defines a security using four criteria:

  • An investment contract's existence
  • The formation of a common enterprise
  • The issuer's profit promise
  • Third-party promotion of the offering

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More on Web3 & Crypto

forkast

forkast

3 years ago

Three Arrows Capital collapse sends crypto tremors

Three Arrows Capital's Google search volume rose over 5,000%.

Three Arrows Capital, a Singapore-based cryptocurrency hedge fund, filed for Chapter 15 bankruptcy last Friday to protect its U.S. assets from creditors.

  • Three Arrows filed for bankruptcy on July 1 in New York.

  • Three Arrows was ordered liquidated by a British Virgin Islands court last week after defaulting on a $670 million loan from Voyager Digital. Three days later, the Singaporean government reprimanded Three Arrows for spreading misleading information and exceeding asset limits.

  • Three Arrows' troubles began with Terra's collapse in May, after it bought US$200 million worth of Terra's LUNA tokens in February, co-founder Kyle Davies told the Wall Street Journal. Three Arrows has failed to meet multiple margin calls since then, including from BlockFi and Genesis.

  • Three Arrows Capital, founded by Kyle Davies and Su Zhu in 2012, manages $10 billion in crypto assets.

  • Bitcoin's price fell from US$20,600 to below US$19,200 after Three Arrows' bankruptcy petition. According to CoinMarketCap, BTC is now above US$20,000.

What does it mean?

Every action causes an equal and opposite reaction, per Newton's third law. Newtonian physics won't comfort Three Arrows investors, but future investors will thank them for their overconfidence.

Regulators are taking notice of crypto's meteoric rise and subsequent fall. Historically, authorities labeled the industry "high risk" to warn traditional investors against entering it. That attitude is changing. Regulators are moving quickly to regulate crypto to protect investors and prevent broader asset market busts.

The EU has reached a landmark deal that will regulate crypto asset sales and crypto markets across the 27-member bloc. The U.S. is close behind with a similar ruling, and smaller markets are also looking to improve safeguards.

For many, regulation is the only way to ensure the crypto industry survives the current winter.

JEFF JOHN ROBERTS

3 years ago

What just happened in cryptocurrency? A plain-English Q&A about Binance's FTX takedown.

Crypto people have witnessed things. They've seen big hacks, mind-boggling swindles, and amazing successes. They've never seen a day like Tuesday, when the world's largest crypto exchange murdered its closest competition.

Here's a primer on Binance and FTX's lunacy and why it matters if you're new to crypto.

What happened?

CZ, a shrewd Chinese-Canadian billionaire, runs Binance. FTX, a newcomer, has challenged Binance in recent years. SBF (Sam Bankman-Fried)—a young American with wild hair—founded FTX (initials are a thing in crypto).

Last weekend, CZ complained about SBF's lobbying and then exploited Binance's market power to attack his competition.

How did CZ do that?

CZ invested in SBF's new cryptocurrency exchange when they were friends. CZ sold his investment in FTX for FTT when he no longer wanted it. FTX clients utilize those tokens to get trade discounts, although they are less liquid than Bitcoin.

SBF made a mistake by providing CZ just too many FTT tokens, giving him control over FTX. It's like Pepsi handing Coca-Cola a lot of stock it could sell at any time. CZ got upset with SBF and flooded the market with FTT tokens.

SBF owns a trading fund with many FTT tokens, therefore this was catastrophic. SBF sought to defend FTT's worth by selling other assets to buy up the FTT tokens flooding the market, but it didn't succeed, and as FTT's value plummeted, his liabilities exceeded his assets. By Tuesday, his companies were insolvent, so he sold them to his competition.

Crazy. How could CZ do that?

CZ likely did this to crush a rising competition. It was also personal. In recent months, regulators have been tough toward the crypto business, and Binance and FTX have been trying to stay on their good side. CZ believed SBF was poisoning U.S. authorities by saying CZ was linked to China, so CZ took retribution.

“We supported previously, but we won't pretend to make love after divorce. We're neutral. But we won't assist people that push against other industry players behind their backs," CZ stated in a tragic tweet on Sunday. He crushed his rival's company two days later.

So does Binance now own FTX?

No. Not yet. CZ has only stated that Binance signed a "letter of intent" to acquire FTX. CZ and SBF say Binance will protect FTX consumers' funds.

Who’s to blame?

You could blame CZ for using his control over FTX to destroy it. SBF is also being criticized for not disclosing the full overlap between FTX and his trading company, which controlled plenty of FTT. If he had been upfront, someone might have warned FTX about this vulnerability earlier, preventing this mess.

Others have alleged that SBF utilized customer monies to patch flaws in his enterprises' balance accounts. That happened to multiple crypto startups that collapsed this spring, which is unfortunate. These are allegations, not proof.

Why does this matter? Isn't this common in crypto?

Crypto is notorious for shady executives and pranks. FTX is the second-largest crypto business, and SBF was largely considered as the industry's golden boy who would help it get on authorities' good side. Thus far.

Does this affect cryptocurrency prices?

Short-term, it's bad. Prices fell on suspicions that FTX was in peril, then rallied when Binance rescued it, only to fall again later on Tuesday.

These occurrences have hurt FTT and SBF's Solana token. It appears like a huge token selloff is affecting the rest of the market. Bitcoin fell 10% and Ethereum 15%, which is bad but not catastrophic for the two largest coins by market cap.

Faisal Khan

Faisal Khan

2 years ago

4 typical methods of crypto market manipulation

Credit: Getty Images/Cemile Bingol

Market fraud

Due to its decentralized and fragmented character, the crypto market has integrity difficulties.

Cryptocurrencies are an immature sector, therefore market manipulation becomes a bigger issue. Many research have attempted to uncover these abuses. CryptoCompare's newest one highlights some of the industry's most typical scams.

Why are these concerns so common in the crypto market? First, even the largest centralized exchanges remain unregulated due to industry immaturity. A low-liquidity market segment makes an attack more harmful. Finally, market surveillance solutions not implemented reduce transparency.

In CryptoCompare's latest exchange benchmark, 62.4% of assessed exchanges had a market surveillance system, although only 18.1% utilised an external solution. To address market integrity, this measure must improve dramatically. Before discussing the report's malpractices, note that this is not a full list of attacks and hacks.

Clean Trading

An investor buys and sells concurrently to increase the asset's price. Centralized and decentralized exchanges show this misconduct. 23 exchanges have a volume-volatility correlation < 0.1 during the previous 100 days, according to CryptoCompares. In August 2022, Exchange A reported $2.5 trillion in artificial and/or erroneous volume, up from $33.8 billion the month before.

Spoofing

Criminals create and cancel fake orders before they can be filled. Since manipulators can hide in larger trading volumes, larger exchanges have more spoofing. A trader placed a 20.8 BTC ask order at $19,036 when BTC was trading at $19,043. BTC declined 0.13% to $19,018 in a minute. At 18:48, the trader canceled the ask order without filling it.

Front-Running

Most cryptocurrency front-running involves inside trading. Traditional stock markets forbid this. Since most digital asset information is public, this is harder. Retailers could utilize bots to front-run.

CryptoCompare found digital wallets of people who traded like insiders on exchange listings. The figure below shows excess cumulative anomalous returns (CAR) before a coin listing on an exchange.

Finally, LAYERING is a sequence of spoofs in which successive orders are put along a ladder of greater (layering offers) or lower (layering bids) values. The paper concludes with recommendations to mitigate market manipulation. Exchange data transparency, market surveillance, and regulatory oversight could reduce manipulative tactics.

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Jenn Leach

Jenn Leach

3 years ago

In November, I made an effort to pitch 10 brands per day. Here's what I discovered.

Photo by Nubelson Fernandes on Unsplash

I pitched 10 brands per workday for a total of 200.

How did I do?

It was difficult.

I've never pitched so much.

What did this challenge teach me?

  • the superiority of quality over quantity

  • When you need help, outsource

  • Don't disregard burnout in order to complete a challenge because it exists.

First, pitching brands for brand deals requires quality. Find firms that align with your brand to expose to your audience.

If you associate with any company, you'll lose audience loyalty. I didn't lose sight of that, but I couldn't resist finishing the task.

Outsourcing.

Delegating work to teammates is effective.

I wish I'd done it.

Three people can pitch 200 companies a month significantly faster than one.

One person does research, one to two do outreach, and one to two do follow-up and negotiating.

Simple.

In 2022, I'll outsource everything.

Burnout.

I felt this, so I slowed down at the end of the month.

Thanksgiving week in November was slow.

I was buying and decorating for Christmas. First time putting up outdoor holiday lights was fun.

Much was happening.

I'm not perfect.

I'm being honest.

The Outcomes

Less than 50 brands pitched.

Result: A deal with 3 brands.

I hoped for 4 brands with reaching out to 200 companies, so three with under 50 is wonderful.

That’s a 6% conversion rate!

Whoo-hoo!

I needed 2%.

Here's a screenshot from one of the deals I booked.

These companies fit my company well. Each campaign is different, but I've booked $2,450 in brand work with a couple of pending transactions for December and January.

$2,450 in brand work booked!

How did I do? You tell me.

Is this something you’d try yourself?

Hunter Walk

Hunter Walk

2 years ago

Is it bad of me to want our portfolio companies to generate greater returns for outside investors than they did for us as venture capitalists?

Wishing for Lasting Companies, Not Penny Stocks or Goodwill Write-Downs

Get me a NASCAR-style company-logoed cremation urn (notice to the executor of my will, theres gonna be a lot of weird requests). I believe in working on projects that would be on your tombstone. As the Homebrew logo is tattooed on my shoulder, expanding the portfolio to my posthumous commemoration is easy. But this isn't an IRR victory lap; it's a hope that the firms we worked for would last beyond my lifetime.

a little boy planting a dollar bill in the ground and pouring a watering can out on it, digital art [DALL-E]

Venture investors too often take credit or distance themselves from startups based on circumstances. Successful companies tell stories of crucial introductions, strategy conversations, and other value. Defeats Even whether our term involves Board service or systematic ethical violations, I'm just a little investment, so there's not much I can do. Since I'm guilty, I'm tossing stones from within the glass home (although we try to own our decisions through the lifecycle).

Post-exit company trajectories are usually unconfounded. Off the cap table, no longer a shareholder (or a diminishing one as you sell off/distribute), eventually leaving the Board. You can cheer for the squad or forget about it, but you've freed the corporation and it's back to portfolio work.

As I look at the downward track of most SPACs and other tarnished IPOs from the last few years, I wonder how I would feel if those were my legacy. Is my job done? Yes. When investing in a business, the odds are against it surviving, let alone thriving and being able to find sunlight. SPAC sponsors, institutional buyers, retail investments. Free trade in an open market is their right. Risking and losing capital is the system working! But

We were lead or co-lead investors in our first three funds, but as additional VCs joined the company, we were pushed down the cap table. Voting your shares rarely matters; supporting the firm when they need it does. Being valuable, consistent, and helping the company improve builds trust with the founders.

I hope every startup we sponsor becomes a successful public company before, during, and after we benefit. My perspective of American capitalism. Well, a stock ticker has a lot of garbage, and I support all types of regulation simplification (in addition to being a person investor in the Long-Term Stock Exchange). Yet being owned by a large group of investors and making actual gains for them is great. Likewise does seeing someone you met when they were just starting out become a public company CEO without losing their voice, leadership, or beliefs.

I'm just thinking about what we can do from the start to realize value from our investments and build companies with bright futures. Maybe seed venture financing shouldn't impact those outcomes, but I'm not comfortable giving up that obligation.

Sam Warain

Sam Warain

3 years ago

Sam Altman, CEO of Open AI, foresees the next trillion-dollar AI company

“I think if I had time to do something else, I would be so excited to go after this company right now.”

Source: TechCrunch, CC BY 2.0, via Wikimedia Commons

Sam Altman, CEO of Open AI, recently discussed AI's present and future.

Open AI is important. They're creating the cyberpunk and sci-fi worlds.

They use the most advanced algorithms and data sets.

GPT-3...sound familiar? Open AI built most copyrighting software. Peppertype, Jasper AI, Rytr. If you've used any, you'll be shocked by the quality.

Open AI isn't only GPT-3. They created DallE-2 and Whisper (a speech recognition software released last week).

What will they do next? What's the next great chance?

Sam Altman, CEO of Open AI, recently gave a lecture about the next trillion-dollar AI opportunity.

Who is the organization behind Open AI?

Open AI first. If you know, skip it.

Open AI is one of the earliest private AI startups. Elon Musk, Greg Brockman, and Rebekah Mercer established OpenAI in December 2015.

OpenAI has helped its citizens and AI since its birth.

They have scary-good algorithms.

Their GPT-3 natural language processing program is excellent.

The algorithm's exponential growth is astounding. GPT-2 came out in November 2019. May 2020 brought GPT-3.

Massive computation and datasets improved the technique in just a year. New York Times said GPT-3 could write like a human.

Same for Dall-E. Dall-E 2 was announced in April 2022. Dall-E 2 won a Colorado art contest.

Open AI's algorithms challenge jobs we thought required human innovation.

So what does Sam Altman think?

The Present Situation and AI's Limitations

During the interview, Sam states that we are still at the tip of the iceberg.

So I think so far, we’ve been in the realm where you can do an incredible copywriting business or you can do an education service or whatever. But I don’t think we’ve yet seen the people go after the trillion dollar take on Google.

He's right that AI can't generate net new human knowledge. It can train and synthesize vast amounts of knowledge, but it simply reproduces human work.

“It’s not going to cure cancer. It’s not going to add to the sum total of human scientific knowledge.”

But the key word is yet.

And that is what I think will turn out to be wrong that most surprises the current experts in the field.

Reinforcing his point that massive innovations are yet to come.

But where?

The Next $1 Trillion AI Company

Sam predicts a bio or genomic breakthrough.

There’s been some promising work in genomics, but stuff on a bench top hasn’t really impacted it. I think that’s going to change. And I think this is one of these areas where there will be these new $100 billion to $1 trillion companies started, and those areas are rare.

Avoid human trials since they take time. Bio-materials or simulators are suitable beginning points.

AI may have a breakthrough. DeepMind, an OpenAI competitor, has developed AlphaFold to predict protein 3D structures.

It could change how we see proteins and their function. AlphaFold could provide fresh understanding into how proteins work and diseases originate by revealing their structure. This could lead to Alzheimer's and cancer treatments. AlphaFold could speed up medication development by revealing how proteins interact with medicines.

Deep Mind offered 200 million protein structures for scientists to download (including sustainability, food insecurity, and neglected diseases).

Source: Deep Mind

Being in AI for 4+ years, I'm amazed at the progress. We're past the hype cycle, as evidenced by the collapse of AI startups like C3 AI, and have entered a productive phase.

We'll see innovative enterprises that could replace Google and other trillion-dollar companies.

What happens after AI adoption is scary and unpredictable. How will AGI (Artificial General Intelligence) affect us? Highly autonomous systems that exceed humans at valuable work (Open AI)

My guess is that the things that we’ll have to figure out are how we think about fairly distributing wealth, access to AGI systems, which will be the commodity of the realm, and governance, how we collectively decide what they can do, what they don’t do, things like that. And I think figuring out the answer to those questions is going to just be huge. — Sam Altman CEO