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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
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.
Amelie Carver
3 years ago
Web3 Needs More Writers to Educate Us About It
WRITE FOR THE WEB3
Why web3’s messaging is lost and how crypto winter is growing growth seeds
People interested in crypto, blockchain, and web3 typically read Bitcoin and Ethereum's white papers. It's a good idea. Documents produced for developers and academia aren't always the ideal resource for beginners.
Given the surge of extremely technical material and the number of fly-by-nights, rug pulls, and other scams, it's little wonder mainstream audiences regard the blockchain sector as an expensive sideshow act.
What's the solution?
Web3 needs more than just builders.
After joining TikTok, I followed Amy Suto of SutoScience. Amy switched from TV scriptwriting to IT copywriting years ago. She concentrates on web3 now. Decentralized autonomous organizations (DAOs) are seeking skilled copywriters for web3.
Amy has found that web3's basics are easy to grasp; you don't need technical knowledge. There's a paradigm shift in knowing the basics; be persistent and patient.
Apple is positioning itself as a data privacy advocate, leveraging web3's zero-trust ethos on data ownership.
Finn Lobsien, who writes about web3 copywriting for the Mirror and Twitter, agrees: acronyms and abstractions won't do.
Web3 preached to the choir. Curious newcomers have only found whitepapers and scams when trying to learn why the community loves it. No wonder people resist education and buy-in.
Due to the gender gap in crypto (Crypto Bro is not just a stereotype), it attracts people singing to the choir or trying to cash in on the next big thing.
Last year, the industry was booming, so writing wasn't necessary. Now that the bear market has returned (for everyone, but especially web3), holding readers' attention is a valuable skill.
White papers and the Web3
Why does web3 rely so much on non-growth content?
Businesses must polish and improve their messaging moving into the 2022 recession. The 2021 tech boom provided such a sense of affluence and (unsustainable) growth that no one needed great marketing material. The market found them.
This was especially true for web3 and the first-time crypto believers. Obviously. If they knew which was good.
White papers help. White papers are highly technical texts that walk a reader through a product's details. How Does a White Paper Help Your Business and That White Paper Guy discuss them.
They're meant for knowledgeable readers. Investors and the technical (academic/developer) community read web3 white papers. White papers are used when a product is extremely technical or difficult to assist an informed reader to a conclusion. Web3 uses them most often for ICOs (initial coin offerings).
White papers for web3 education help newcomers learn about the web3 industry's components. It's like sending a first-grader to the Annotated Oxford English Dictionary to learn to read. It's a reference, not a learning tool, for words.
Newcomers can use platforms that teach the basics. These included Coinbase's Crypto Basics tutorials or Cryptochicks Academy, founded by the mother of Ethereum's inventor to get more women utilizing and working in crypto.
Discord and Web3 communities
Discord communities are web3's opposite. Discord communities involve personal communications and group involvement.
Online audience growth begins with community building. User personas prefer 1000 dedicated admirers over 1 million lukewarm followers, and the language is much more easygoing. Discord groups are renowned for phishing scams, compromised wallets, and incorrect information, especially since the crypto crisis.
White papers and Discord increase industry insularity. White papers are complicated, and Discord has a high risk threshold.
Web3 and writing ads
Copywriting is emotional, but white papers are logical. It uses the brain's quick-decision centers. It's meant to make the reader invest immediately.
Not bad. People think sales are sleazy, but they can spot the poor things.
Ethical copywriting helps you reach the correct audience. People who gain a following on Medium are likely to have copywriting training and a readership (or three) in mind when they publish. Tim Denning and Sinem Günel know how to identify a target audience and make them want to learn more.
In a fast-moving market, copywriting is less about long-form content like sales pages or blogs, but many organizations do. Instead, the copy is concise, individualized, and high-value. Tweets, email marketing, and IM apps (Discord, Telegram, Slack to a lesser extent) keep engagement high.
What does web3's messaging lack? As DAOs add stricter copyrighting, narrative and connecting tales seem to be missing.
Web3 is passionate about constructing the next internet. Now, they can connect their passion to a specific audience so newcomers understand why.
CyberPunkMetalHead
3 years ago
Developed an automated cryptocurrency trading tool for nearly a year before unveiling it this month.
Overview
I'm happy to provide this important update. We've worked on this for a year and a half, so I'm glad to finally write it. We named the application AESIR because we’ve love Norse Mythology. AESIR automates and runs trading strategies.
Volatility, technical analysis, oscillators, and other signals are currently supported by AESIR.
Additionally, we enhanced AESIR's ability to create distinctive bespoke signals by allowing it to analyze many indicators and produce a single signal.
AESIR has a significant social component that allows you to copy the best-performing public setups and use them right away.
Enter your email here to be notified when AEISR launches.
Views on algorithmic trading
First, let me clarify. Anyone who claims algorithmic trading platforms are money-printing plug-and-play devices is a liar. Algorithmic trading platforms are a collection of tools.
A trading algorithm won't make you a competent trader if you lack a trading strategy and yolo your funds without testing. It may hurt your trade. Test and alter your plans to account for market swings, but comprehend market signals and trends.
Status Report
Throughout closed beta testing, we've communicated closely with users to design a platform they want to use.
To celebrate, we're giving you free Aesir Viking NFTs and we cover gas fees.
Why use a trading Algorithm?
Automating a successful manual approach
experimenting with and developing solutions that are impossible to execute manually
One AESIR strategy lets you buy any cryptocurrency that rose by more than x% in y seconds.
AESIR can scan an exchange for coins that have gained more than 3% in 5 minutes. It's impossible to manually analyze over 1000 trading pairings every 5 minutes. Auto buy dips or DCA around a Dip
Sneak Preview
Here's the Leaderboard, where you can clone the best public settings.
As a tiny, self-funded team, we're excited to unveil our product. It's a beta release, so there's still more to accomplish, but we know where we stand.
If this sounds like a project that you might want to learn more about, you can sign up to our newsletter and be notified when AESIR launches.
Useful Links:
Join the Discord | Join our subreddit | Newsletter | Mint Free NFT
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Khoi Ho
3 years ago
After working at seven startups, here are the early-stage characteristics that contributed to profitability, unicorn status or successful acquisition.
I've worked in a People role at seven early-stage firms for over 15 years (I enjoy chasing a dream!). Few of the seven achieved profitability, including unicorn status or acquisition.
Did early-stage startups share anything? Was there a difference between winners and losers? YES.
I support founders and entrepreneurs building financially sustainable enterprises with a compelling cause. This isn't something everyone would do. A company's success demands more than guts. Founders drive startup success.
Six Qualities of Successful Startups
Successful startup founders either innately grasped the correlation between strong team engagement and a well-executed business model, or they knew how to ask and listen to others (executive coaches, other company leaders, the team itself) to learn about it.
Successful startups:
1. Co-founders agreed and got along personally.
Multi-founder startups are common. When co-founders agree on strategic decisions and are buddies, there's less friction and politics at work.
As a co-founder, ask your team if you're aligned. They'll explain.
I've seen C-level leaders harbor personal resentments over disagreements. A co-departure founder's caused volatile leadership and work disruptions that the team struggled to manage during and after.
2. Team stayed.
Successful startups have low turnover. Nobody is leaving. There may be a termination for performance, but other team members will have observed the issues and agreed with the decision.
You don't want organizational turnover of 30%+, with leaders citing performance issues but the team not believing them. This breeds suspicion.
Something is wrong if many employees leave voluntarily or involuntarily. You may hear about lack of empowerment, support, or toxic leadership in exit interviews and from the existing team. Intellectual capital loss and resource instability harm success.
3. Team momentum.
A successful startup's team is excited about its progress. Consistently achieving goals and having trackable performance metrics. Some describe this period of productivity as magical, with great talents joining the team and the right people in the right places. Increasing momentum.
I've also seen short-sighted decisions where only some departments, like sales and engineering, had goals. Lack of a unified goals system created silos and miscommunication. Some employees felt apathetic because they didn't know how they contributed to team goals.
4. Employees advanced in their careers.
Even if you haven't created career pathing or professional development programs, early-stage employees will grow and move into next-level roles. If you hire more experienced talent and leaders, expect them to mentor existing team members. Growing companies need good performers.
New talent shouldn't replace and discard existing talent. This creates animosity and makes existing employees feel unappreciated for their early contributions to the company.
5. The company lived its values.
Culture and identity are built on lived values. A company's values affect hiring, performance management, rewards, and other processes. Identify, practice, and believe in company values. Starting with team values instead of management or consultants helps achieve this. When a company's words and actions match, it builds trust.
When company values are beautifully displayed on a wall but few employees understand them, the opposite is true. If an employee can't name the company values, they're useless.
6. Communication was clear.
When necessary information is shared with the team, they feel included, trusted, and like owners. Transparency means employees have the needed information to do their jobs. Disclosure builds trust. The founders answer employees' questions honestly.
Information accessibility decreases office politics. Without transparency, even basic information is guarded and many decisions are made in secret. I've seen founders who don't share financial, board meeting, or compensation and equity information. The founders' lack of trust in the team wasn't surprising, so it was reciprocated.
The Choices
Finally. All six of the above traits (leadership alignment, minimal turnover, momentum, professional advancement, values, and transparency) were high in the profitable startups I've worked at, including unicorn status or acquisition.
I've seen these as the most common and constant signals of startup success or failure.
These characteristics are the product of founders' choices. These decisions lead to increased team engagement and business execution.
Here's something to consider for startup employees and want-to-bes. 90% of startups fail, despite the allure of building something new and gaining ownership. With the emotional and time investment in startup formation, look for startups with these traits to reduce your risk.
Both you and the startup will thrive in these workplaces.
Woo
3 years ago
How To Launch A Business Without Any Risk
> Say Hello To The Lean-Hedge Model
People think starting a business requires significant debt and investment. Like Shark Tank, you need a world-changing idea. I'm not saying to avoid investors or brilliant ideas.
Investing is essential to build a genuinely profitable company. Think Apple or Starbucks.
Entrepreneurship is risky because many people go bankrupt from debt. As starters, we shouldn't do it. Instead, use lean-hedge.
Simply defined, you construct a cash-flow business to hedge against long-term investment-heavy business expenses.
What the “fx!$rench-toast” is the lean-hedge model?
When you start a business, your money should move down, down, down, then up when it becomes profitable.
Many people don't survive the business's initial losses and debt. What if, we created a cash-flow business BEFORE we started our Starbucks to hedge against its initial expenses?
Lean-hedge has two sections. Start a cash-flow business. A cash-flow business takes minimal investment and usually involves sweat and time.
Let’s take a look at some examples:
A Translation company
Personal portfolio website (you make a site then you do cold e-mail marketing)
FREELANCE (UpWork, Fiverr).
Educational business.
Infomarketing. (You design a knowledge-based product. You sell the info).
Online fitness/diet/health coaching ($50-$300/month, calls, training plan)
Amazon e-book publishing. (Medium writers do this)
YouTube, cash-flow channel
A web development agency (I'm a dev, but if you're not, a graphic design agency, etc.) (Sell your time.)
Digital Marketing
Online paralegal (A million lawyers work in the U.S).
Some dropshipping (Organic Tik Tok dropshipping, where you create content to drive traffic to your shopify store instead of spend money on ads).
(Disclaimer: My first two cash-flow enterprises, which were language teaching, failed terribly. My translation firm is now booming because B2B e-mail marketing is easy.)
Crossover occurs. Your long-term business starts earning more money than your cash flow business.
My cash-flow business (freelancing, translation) makes $7k+/month.
I’ve decided to start a slightly more investment-heavy digital marketing agency
Here are the anticipated business's time- and money-intensive investments:
($$$) Top Front-End designer's Figma/UI-UX design (in negotiation)
(Time): A little copywriting (I will do this myself)
($$) Creating an animated webpage with HTML (in negotiation)
Backend Development (Duration) (I'll carry out this myself using Laravel.)
Logo Design ($$)
Logo Intro Video for $
Video Intro (I’ll edit this myself with Premiere Pro)
etc.
Then evaluate product, place, price, and promotion. Consider promotion and pricing.
The lean-hedge model's point is:
Don't gamble. Avoid debt. First create a cash-flow project, then grow it steadily.
Check read my previous posts on “Nightmare Mode” (which teaches you how to make work as interesting as video games) and Why most people can't escape a 9-5 to learn how to develop a cash-flow business.
Tora Northman
3 years ago
Pixelmon NFTs are so bad, they are almost good!
Bored Apes prices continue to rise, HAPEBEAST launches, Invisible Friends hype continues to grow. Sadly, not all projects are as successful.
Of course, there are many factors to consider when buying an NFT. Is the project a scam? Will the reveal derail the project? Possibly, but when Pixelmon first teased its launch, it generated a lot of buzz.
With a primary sale mint price of 3 ETH ($8,100 USD), it started as an expensive project, with plenty of fans willing to invest in what was sold as a game. After it was revealed, it fell rapidly.
Why? It was overpromised and under delivered.
According to the project's creator[^1], the funds generated will be used to develop the artwork. "The Pixelmon reveal was wrong. This is what our Pixelmon look like in-game. "Despite the fud, I will not go anywhere," he wrote on Twitter. The goal remains. The funds will still be used to build our game. I will finish this project."
The project raised $70 million USD, but the NFTs buyers received were not the project's original teasers. Some call it "the worst NFT project ever," while others call it a complete scam.
But there's hope for some buyers. Kevin emerged from the ashes as the project was roasted over the fire.
A Minecraft character meets Salad Fingers - that's Kevin. He's a frog-like creature whose reveal was such a terrible NFT that it became part of history – and a meme.
If you're laughing at people paying $8K for a silly pixelated image, you might need to take it back. Precisely because of this, lucky holders who minted Kevin have been able to sell the now-memed NFT for over 8 ETH (around $24,000 USD), with some currently listed for 100 ETH.
Of course, Twitter has been awash in memes mocking those who invested in the project, because what else can you do when so many people lose money?
It's still unclear if the NFT project is a scam, but the team behind it was hired on Upwork. There's still hope for redemption, but Kevin's rise to fame appears to be the only positive outcome so far.
[^1] This is not the first time the creator (A 20-yo New Zealanders) has sought money via an online platform and had people claiming he under-delivered. He raised $74,000 on Kickstarter for a card game called Psycho Chicken. There are hundreds of comments on the Kickstarter project saying they haven't received the product and pleading for a refund or an update.