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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:
- An investment of money
- n a common enterprise
- With the expectation of profit
- 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
Read original post.
More on Web3 & Crypto
Jonathan Vanian
4 years ago
What is Terra? Your guide to the hot cryptocurrency
With cryptocurrencies like Bitcoin, Ether, and Dogecoin gyrating in value over the past few months, many people are looking at so-called stablecoins like Terra to invest in because of their more predictable prices.
Terraform Labs, which oversees the Terra cryptocurrency project, has benefited from its rising popularity. The company said recently that investors like Arrington Capital, Lightspeed Venture Partners, and Pantera Capital have pledged $150 million to help it incubate various crypto projects that are connected to Terra.
Terraform Labs and its partners have built apps that operate on the company’s blockchain technology that helps keep a permanent and shared record of the firm’s crypto-related financial transactions.
Here’s what you need to know about Terra and the company behind it.
What is Terra?
Terra is a blockchain project developed by Terraform Labs that powers the startup’s cryptocurrencies and financial apps. These cryptocurrencies include the Terra U.S. Dollar, or UST, that is pegged to the U.S. dollar through an algorithm.
Terra is a stablecoin that is intended to reduce the volatility endemic to cryptocurrencies like Bitcoin. Some stablecoins, like Tether, are pegged to more conventional currencies, like the U.S. dollar, through cash and cash equivalents as opposed to an algorithm and associated reserve token.
To mint new UST tokens, a percentage of another digital token and reserve asset, Luna, is “burned.” If the demand for UST rises with more people using the currency, more Luna will be automatically burned and diverted to a community pool. That balancing act is supposed to help stabilize the price, to a degree.
“Luna directly benefits from the economic growth of the Terra economy, and it suffers from contractions of the Terra coin,” Terraform Labs CEO Do Kwon said.
Each time someone buys something—like an ice cream—using UST, that transaction generates a fee, similar to a credit card transaction. That fee is then distributed to people who own Luna tokens, similar to a stock dividend.
Who leads Terra?
The South Korean firm Terraform Labs was founded in 2018 by Daniel Shin and Kwon, who is now the company’s CEO. Kwon is a 29-year-old former Microsoft employee; Shin now heads the Chai online payment service, a Terra partner. Kwon said many Koreans have used the Chai service to buy goods like movie tickets using Terra cryptocurrency.
Terraform Labs does not make money from transactions using its crypto and instead relies on outside funding to operate, Kwon said. It has raised $57 million in funding from investors like HashKey Digital Asset Group, Divergence Digital Currency Fund, and Huobi Capital, according to deal-tracking service PitchBook. The amount raised is in addition to the latest $150 million funding commitment announced on July 16.
What are Terra’s plans?
Terraform Labs plans to use Terra’s blockchain and its associated cryptocurrencies—including one pegged to the Korean won—to create a digital financial system independent of major banks and fintech-app makers. So far, its main source of growth has been in Korea, where people have bought goods at stores, like coffee, using the Chai payment app that’s built on Terra’s blockchain. Kwon said the company’s associated Mirror trading app is experiencing growth in China and Thailand.
Meanwhile, Kwon said Terraform Labs would use its latest $150 million in funding to invest in groups that build financial apps on Terra’s blockchain. He likened the scouting and investing in other groups as akin to a “Y Combinator demo day type of situation,” a reference to the popular startup pitch event organized by early-stage investor Y Combinator.
The combination of all these Terra-specific financial apps shows that Terraform Labs is “almost creating a kind of bank,” said Ryan Watkins, a senior research analyst at cryptocurrency consultancy Messari.
In addition to cryptocurrencies, Terraform Labs has a number of other projects including the Anchor app, a high-yield savings account for holders of the group’s digital coins. Meanwhile, people can use the firm’s associated Mirror app to create synthetic financial assets that mimic more conventional ones, like “tokenized” representations of corporate stocks. These synthetic assets are supposed to be helpful to people like “a small retail trader in Thailand” who can more easily buy shares and “get some exposure to the upside” of stocks that they otherwise wouldn’t have been able to obtain, Kwon said. But some critics have said the U.S. Securities and Exchange Commission may eventually crack down on synthetic stocks, which are currently unregulated.
What do critics say?
Terra still has a long way to go to catch up to bigger cryptocurrency projects like Ethereum.
Most financial transactions involving Terra-related cryptocurrencies have originated in Korea, where its founders are based. Although Terra is becoming more popular in Korea thanks to rising interest in its partner Chai, it’s too early to say whether Terra-related currencies will gain traction in other countries.
Terra’s blockchain runs on a “limited number of nodes,” said Messari’s Watkins, referring to the computers that help keep the system running. That helps reduce latency that may otherwise slow processing of financial transactions, he said.
But the tradeoff is that Terra is less “decentralized” than other blockchain platforms like Ethereum, which is powered by thousands of interconnected computing nodes worldwide. That could make Terra less appealing to some blockchain purists.
Scott Hickmann
4 years ago
Welcome
Welcome to Integrity's Web3 community!
The Verge
3 years ago
Bored Ape Yacht Club creator raises $450 million at a $4 billion valuation.
Yuga Labs, owner of three of the biggest NFT brands on the market, announced today a $450 million funding round. The money will be used to create a media empire based on NFTs, starting with games and a metaverse project.
The team's Otherside metaverse project is an MMORPG meant to connect the larger NFT universe. They want to create “an interoperable world” that is “gamified” and “completely decentralized,” says Wylie Aronow, aka Gordon Goner, co-founder of Bored Ape Yacht Club. “We think the real Ready Player One experience will be player run.”
Just a few weeks ago, Yuga Labs announced the acquisition of CryptoPunks and Meebits from Larva Labs. The deal brought together three of the most valuable NFT collections, giving Yuga Labs more IP to work with when developing games and metaverses. Last week, ApeCoin was launched as a cryptocurrency that will be governed independently and used in Yuga Labs properties.
Otherside will be developed by “a few different game studios,” says Yuga Labs CEO Nicole Muniz. The company plans to create development tools that allow NFTs from other projects to work inside their world. “We're welcoming everyone into a walled garden.”
However, Yuga Labs believes that other companies are approaching metaverse projects incorrectly, allowing the startup to stand out. People won't bond spending time in a virtual space with nothing going on, says Yuga Labs co-founder Greg Solano, aka Gargamel. Instead, he says, people bond when forced to work together.
In order to avoid getting smacked, Solano advises making friends. “We don't think a Zoom chat and walking around saying ‘hi' creates a deep social experience.” Yuga Labs refused to provide a release date for Otherside. Later this year, a play-to-win game is planned.
The funding round was led by Andreessen Horowitz, a major investor in the Web3 space. It previously backed OpenSea and Coinbase. Animoca Brands, Coinbase, and MoonPay are among those who have invested. Andreessen Horowitz general partner Chris Lyons will join Yuga Labs' board. The Financial Times broke the story last month.
"META IS A DOMINANT DIGITAL EXPERIENCE PROVIDER IN A DYSTOPIAN FUTURE."
This emerging [Web3] ecosystem is important to me, as it is to companies like Meta,” Chris Dixon, head of Andreessen Horowitz's crypto arm, tells The Verge. “In a dystopian future, Meta is the dominant digital experience provider, and it controls all the money and power.” (Andreessen Horowitz co-founder Marc Andreessen sits on Meta's board and invested early in Facebook.)
Yuga Labs has been profitable so far. According to a leaked pitch deck, the company made $137 million last year, primarily from its NFT brands, with a 95% profit margin. (Yuga Labs declined to comment on deck figures.)
But the company has built little so far. According to OpenSea data, it has only released one game for a limited time. That means Yuga Labs gets hundreds of millions of dollars to build a gaming company from scratch, based on a hugely lucrative art project.
Investors fund Yuga Labs based on its success. That's what they did, says Dixon, “they created a culture phenomenon”. But ultimately, the company is betting on the same thing that so many others are: that a metaverse project will be the next big thing. Now they must construct it.
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Leah
3 years ago
The Burnout Recovery Secrets Nobody Is Talking About
What works and what’s just more toxic positivity
Just keep at it; you’ll get it.
I closed the Zoom call and immediately dropped my head. Open tabs included material on inspiration, burnout, and recovery.
I searched everywhere for ways to avoid burnout.
It wasn't that I needed to keep going, change my routine, employ 8D audio playlists, or come up with fresh ideas. I had several ideas and a schedule. I knew what to do.
I wasn't interested. I kept reading, changing my self-care and mental health routines, and writing even though it was tiring.
Since burnout became a psychiatric illness in 2019, thousands have shared their experiences. It's spreading rapidly among writers.
What is the actual key to recovering from burnout?
Every A-list burnout story emphasizes prevention. Other lists provide repackaged self-care tips. More discuss mental health.
It's like the mid-2000s, when pink quotes about bubble baths saturated social media.
The self-care mania cost us all. Self-care is crucial, but utilizing it to address everything didn't work then or now.
How can you recover from burnout?
Time
Are extended breaks actually good for you? Most people need a break every 62 days or so to avoid burnout.
Real-life burnout victims all took breaks. Perhaps not a long hiatus, but breaks nonetheless.
Burnout is slow and gradual. It takes little bits of your motivation and passion at a time. Sometimes it’s so slow that you barely notice or blame it on other things like stress and poor sleep.
Burnout doesn't come overnight; neither will recovery.
I don’t care what anyone else says the cure for burnout is. It has to be time because time is what gave us all burnout in the first place.
Ethan Siegel
2 years ago
How you view the year will change after using this one-page calendar.
No other calendar is simpler, smaller, and reusable year after year. It works and is used here.
Most of us discard and replace our calendars annually. Each month, we move our calendar ahead another page, thus if we need to know which day of the week corresponds to a given day/month combination, we have to calculate it or flip forward/backward to the corresponding month. Questions like:
What day does this year's American Thanksgiving fall on?
Which months contain a Friday the thirteenth?
When is July 4th? What day of the week?
Alternatively, what day of the week is Christmas?
They're hard to figure out until you switch to the right month or look up all the months.
However, mathematically, the answers to these questions or any question that requires matching the day of the week with the day/month combination in a year are predictable, basic, and easy to work out. If you use this one-page calendar instead of a 12-month calendar, it lasts the whole year and is easy to alter for future years. Let me explain.
The 2023 one-page calendar is above. The days of the month are on the lower left, which works for all months if you know that:
There are 31 days in January, March, May, July, August, October, and December.
All of the months of April, June, September, and November have 30 days.
And depending on the year, February has either 28 days (in non-leap years) or 29 days (in leap years).
If you know this, this calendar makes it easy to match the day/month of the year to the weekday.
Here are some instances. American Thanksgiving is always on the fourth Thursday of November. You'll always know the month and day of the week, but the date—the day in November—changes each year.
On any other calendar, you'd have to flip to November to see when the fourth Thursday is. This one-page calendar only requires:
pick the month of November in the top-right corner to begin.
drag your finger down until Thursday appears,
then turn left and follow the monthly calendar until you reach the fourth Thursday.
It's obvious: 2023 is the 23rd American Thanksgiving. For every month and day-of-the-week combination, start at the month, drag your finger down to the desired day, and then move to the left to see which dates match.
What if you knew the day of the week and the date of the month, but not the month(s)?
A different method using the same one-page calendar gives the answer. Which months have Friday the 13th this year? Just:
begin on the 13th of the month, the day you know you desire,
then swipe right with your finger till Friday appears.
and then work your way up until you can determine which months the specific Friday the 13th falls under.
One Friday the 13th occurred in January 2023, and another will occur in October.
The most typical reason to consult a calendar is when you know the month/day combination but not the day of the week.
Compared to single-month calendars, the one-page calendar excels here. Take July 4th, for instance. Find the weekday here:
beginning on the left on the fourth of the month, as you are aware,
also begin with July, the month of the year you are most familiar with, at the upper right,
you should move your two fingers in the opposite directions till they meet: on a Tuesday in 2023.
That's how you find your selected day/month combination's weekday.
Another example: Christmas. Christmas Day is always December 25th, however unless your conventional calendar is open to December of your particular year, a question like "what day of the week is Christmas?" difficult to answer.
Unlike the one-page calendar!
Remember the left-hand day of the month. Top-right, you see the month. Put two fingers, one from each hand, on the date (25th) and the month (December). Slide the day hand to the right and the month hand downwards until they touch.
They meet on Monday—December 25, 2023.
For 2023, that's fine, but what happens in 2024? Even worse, what if we want to know the day-of-the-week/day/month combo many years from now?
I think the one-page calendar shines here.
Except for the blue months in the upper-right corner of the one-page calendar, everything is the same year after year. The months also change in a consistent fashion.
Each non-leap year has 365 days—one more than a full 52 weeks (which is 364). Since January 1, 2023 began on a Sunday and 2023 has 365 days, we immediately know that December 31, 2023 will conclude on a Sunday (which you can confirm using the one-page calendar) and that January 1, 2024 will begin on a Monday. Then, reorder the months for 2024, taking in mind that February will have 29 days in a leap year.
Please note the differences between 2023 and 2024 month placement. In 2023:
October and January began on the same day of the week.
On the following Monday of the week, May began.
August started on the next day,
then the next weekday marked the start of February, March, and November, respectively.
Unlike June, which starts the following weekday,
While September and December start on the following day of the week,
Lastly, April and July start one extra day later.
Since 2024 is a leap year, February has 29 days, disrupting the rhythm. Month placements change to:
The first day of the week in January, April, and July is the same.
October will begin the following day.
Possibly starting the next weekday,
February and August start on the next weekday,
beginning on the following day of the week between March and November,
beginning the following weekday in June,
and commencing one more day of the week after that, September and December.
Due to the 366-day leap year, 2025 will start two days later than 2024 on January 1st.
Now, looking at the 2025 calendar, you can see that the 2023 pattern of which months start on which days is repeated! The sole variation is a shift of three days-of-the-week ahead because 2023 had one more day (365) than 52 full weeks (364), and 2024 had two more days (366). Again,
On Wednesday this time, January and October begin on the same day of the week.
Although May begins on Thursday,
August begins this Friday.
March, November, and February all begin on a Saturday.
Beginning on a Sunday in June
Beginning on Monday are September and December,
and on Tuesday, April and July begin.
In 2026 and 2027, the year will commence on a Thursday and a Friday, respectively.
We must return to our leap year monthly arrangement in 2028. Yes, January 1, 2028 begins on a Saturday, but February, which begins on a Tuesday three days before January, will have 29 days. Thus:
Start dates for January, April, and July are all Saturdays.
Given that October began on Sunday,
Although May starts on a Monday,
beginning on a Tuesday in February and August,
Beginning on a Wednesday in March and November,
Beginning on Thursday, June
and Friday marks the start of September and December.
This is great because there are only 14 calendar configurations: one for each of the seven non-leap years where January 1st begins on each of the seven days of the week, and one for each of the seven leap years where it begins on each day of the week.
The 2023 calendar will function in 2034, 2045, 2051, 2062, 2073, 2079, 2090, 2102, 2113, and 2119. Except when passing over a non-leap year that ends in 00, like 2100, the repeat time always extends to 12 years or shortens to an extra 6 years.
The pattern is repeated in 2025's calendar in 2031, 2042, 2053, 2059, 2070, 2081, 2087, 2098, 2110, and 2121.
The extra 6-year repeat at the end of the century on the calendar for 2026 will occur in the years 2037, 2043, 2054, 2065, 2071, 2082, 2093, 2099, 2105, and 2122.
The 2027s calendar repeats in 2038, 2049, 2055, 2066, 2077, 2083, 2094, 2100, 2106, and 2117, almost exactly matching the 2026s pattern.
For leap years, the recurrence pattern is every 28 years when not passing a non-leap year ending in 00, or 12 or 40 years when we do. 2024's calendar repeats in 2052, 2080, 2120, 2148, 2176, and 2216; 2028's in 2056, 2084, 2124, 2152, 2180, and 2220.
Knowing January 1st and whether it's a leap year lets you construct a one-page calendar for any year. Try it—you might find it easier than any other alternative!
Aaron Dinin, PhD
2 years ago
Are You Unintentionally Creating the Second Difficult Startup Type?
Most don't understand the issue until it's too late.
My first startup was what entrepreneurs call the hardest. A two-sided marketplace.
Two-sided marketplaces are the hardest startups because founders must solve the chicken or the egg conundrum.
A two-sided marketplace needs suppliers and buyers. Without suppliers, buyers won't come. Without buyers, suppliers won't come. An empty marketplace and a founder striving to gain momentum result.
My first venture made me a struggling founder seeking to achieve traction for a two-sided marketplace. The company failed, and I vowed never to start another like it.
I didn’t. Unfortunately, my second venture was almost as hard. It failed like the second-hardest startup.
What kind of startup is the second-hardest?
The second-hardest startup, which is almost as hard to develop, is rarely discussed in the startup community. Because of this, I predict more founders fail each year trying to develop the second-toughest startup than the hardest.
Fairly, I have no proof. I see many startups, so I have enough of firsthand experience. From what I've seen, for every entrepreneur developing a two-sided marketplace, I'll meet at least 10 building this other challenging startup.
I'll describe a startup I just met with its two co-founders to explain the second hardest sort of startup and why it's so hard. They created a financial literacy software for parents of high schoolers.
The issue appears plausible. Children struggle with money. Parents must teach financial responsibility. Problems?
It's possible.
Buyers and users are different.
Buyer-user mismatch.
The financial literacy app I described above targets parents. The parent doesn't utilize the app. Child is end-user. That may not seem like much, but it makes customer and user acquisition and onboarding difficult for founders.
The difficulty of a buyer-user imbalance
The company developing a product faces a substantial operational burden when the buyer and end customer are different. Consider classic firms where the buyer is the end user to appreciate that responsibility.
Entrepreneurs selling directly to end users must educate them about the product's benefits and use. Each demands a lot of time, effort, and resources.
Imagine selling a financial literacy app where the buyer and user are different. To make the first sale, the entrepreneur must establish all the items I mentioned above. After selling, the entrepreneur must supply a fresh set of resources to teach, educate, or train end-users.
Thus, a startup with a buyer-user mismatch must market, sell, and train two organizations at once, requiring twice the work with the same resources.
The second hardest startup is hard for reasons other than the chicken-or-the-egg conundrum. It takes a lot of creativity and luck to solve the chicken-or-egg conundrum.
The buyer-user mismatch problem cannot be overcome by innovation or luck. Buyer-user mismatches must be solved by force. Simply said, when a product buyer is different from an end-user, founders have a lot more work. If they can't work extra, their companies fail.