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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

Read original post.

More on Web3 & Crypto

Marco Manoppo

Marco Manoppo

3 years ago

Failures of DCG and Genesis

Don't sleep with your own sister.

70% of lottery winners go broke within five years. You've heard the last one. People who got rich quickly without setbacks and hard work often lose it all. My father said, "Easy money is easily lost," and a wealthy friend who owns a family office said, "The first generation makes it, the second generation spends it, and the third generation blows it."

This is evident. Corrupt politicians in developing countries live lavishly, buying their third wives' fifth Hermès bag and celebrating New Year's at The Brando Resort. A successful businessperson from humble beginnings is more conservative with money. More so if they're atom-based, not bit-based. They value money.

Crypto can "feel" easy. I have nothing against capital market investing. The global financial system is shady, but that's another topic. The problem started when those who took advantage of easy money started affecting other businesses. VCs did minimal due diligence on FTX because they needed deal flow and returns for their LPs. Lenders did minimum diligence and underwrote ludicrous loans to 3AC because they needed revenue.

Alameda (hence FTX) and 3AC made "easy money" Genesis and DCG aren't. Their businesses are more conventional, but they underestimated how "easy money" can hurt them.

Genesis has been the victim of easy money hubris and insolvency, losing $1 billion+ to 3AC and $200M to FTX. We discuss the implications for the broader crypto market.

Here are the quick takeaways:

  • Genesis is one of the largest and most notable crypto lenders and prime brokerage firms.

  • DCG and Genesis have done related party transactions, which can be done right but is a bad practice.

  • Genesis owes DCG $1.5 billion+.

  • If DCG unwinds Grayscale's GBTC, $9-10 billion in BTC will hit the market.

  • DCG will survive Genesis.

What happened?

Let's recap the FTX shenanigan from two weeks ago. Shenanigans! Delphi's tweet sums up the craziness. Genesis has $175M in FTX.

Cred's timeline: I hate bad crisis management. Yes, admitting their balance sheet hole right away might've sparked more panic, and there's no easy way to convey your trouble, but no one ever learns.

By November 23, rumors circulated online that the problem could affect Genesis' parent company, DCG. To address this, Barry Silbert, Founder, and CEO of DCG released a statement to shareholders.

  • A few things are confirmed thanks to this statement.

  • DCG owes $1.5 billion+ to Genesis.

  • $500M is due in 6 months, and the rest is due in 2032 (yes, that’s not a typo).

  • Unless Barry raises new cash, his last-ditch efforts to repay the money will likely push the crypto market lower.

  • Half a year of GBTC fees is approximately $100M.

  • They can pay $500M with GBTC.

  • With profits, sell another port.

Genesis has hired a restructuring adviser, indicating it is in trouble.

Rehypothecation

Every crypto problem in the past year seems to be rehypothecation between related parties, excessive leverage, hubris, and the removal of the money printer. The Bankless guys provided a chart showing 2021 crypto yield.

In June 2022, @DataFinnovation published a great investigation about 3AC and DCG. Here's a summary.

  • 3AC borrowed BTC from Genesis and pledged it to create Grayscale's GBTC shares.

  • 3AC uses GBTC to borrow more money from Genesis.

  • This lets 3AC leverage their capital.

  • 3AC's strategy made sense because GBTC had a premium, creating "free money."

  • GBTC's discount and LUNA's implosion caused problems.

  • 3AC lost its loan money in LUNA.

  • Margin called on 3ACs' GBTC collateral.

  • DCG bought GBTC to avoid a systemic collapse and a larger discount.

  • Genesis lost too much money because 3AC can't pay back its loan. DCG "saved" Genesis, but the FTX collapse hurt Genesis further, forcing DCG and Genesis to seek external funding.

bruh…

Learning Experience

Co-borrowing. Unnecessary rehypothecation. Extra space. Governance disaster. Greed, hubris. Crypto has repeatedly shown it can recreate traditional financial system disasters quickly. Working in crypto is one of the best ways to learn crazy financial tricks people will do for a quick buck much faster than if you dabble in traditional finance.

Moving Forward

I think the crypto industry needs to consider its future. This is especially true for professionals. I'm not trying to scare you. In 2018 and 2020, I had doubts. No doubts now. Detailing the crypto industry's potential outcomes helped me gain certainty and confidence in its future. This includes VCs' benefits and talking points during the bull market, as well as what would happen if government regulations became hostile, etc. Even if that happens, I'm certain. This is permanent. I may write a post about that soon.

Sincerely,

M.

Sam Bourgi

Sam Bourgi

3 years ago

DAOs are legal entities in Marshall Islands.

The Pacific island state recognizes decentralized autonomous organizations.

The Republic of the Marshall Islands has recognized decentralized autonomous organizations (DAOs) as legal entities, giving collectively owned and managed blockchain projects global recognition.

The Marshall Islands' amended the Non-Profit Entities Act 2021 that now recognizes DAOs, which are blockchain-based entities governed by self-organizing communities. Incorporating Admiralty LLC, the island country's first DAO, was made possible thanks to the amendement. MIDAO Directory Services Inc., a domestic organization established to assist DAOs in the Marshall Islands, assisted in the incorporation.

The new law currently allows any DAO to register and operate in the Marshall Islands.

“This is a unique moment to lead,” said Bobby Muller, former Marshall Islands chief secretary and co-founder of MIDAO. He believes DAOs will help create “more efficient and less hierarchical” organizations.

A global hub for DAOs, the Marshall Islands hopes to become a global hub for DAO registration, domicile, use cases, and mass adoption. He added:

"This includes low-cost incorporation, a supportive government with internationally recognized courts, and a technologically open environment."

According to the World Bank, the Marshall Islands is an independent island state in the Pacific Ocean near the Equator. To create a blockchain-based cryptocurrency that would be legal tender alongside the US dollar, the island state has been actively exploring use cases for digital assets since at least 2018.

In February 2018, the Marshall Islands approved the creation of a new cryptocurrency, Sovereign (SOV). As expected, the IMF has criticized the plan, citing concerns that a digital sovereign currency would jeopardize the state's financial stability. They have also criticized El Salvador, the first country to recognize Bitcoin (BTC) as legal tender.

Marshall Islands senator David Paul said the DAO legislation does not pose the same issues as a government-backed cryptocurrency. “A sovereign digital currency is financial and raises concerns about money laundering,” . This is more about giving DAOs legal recognition to make their case to regulators, investors, and consumers.

CyberPunkMetalHead

CyberPunkMetalHead

3 years ago

195 countries want Terra Luna founder Do Kwon

Interpol has issued a red alert on Terraform Labs' CEO, South Korean prosecutors said.

After the May crash of Terra Luna revealed tax evasion issues, South Korean officials filed an arrest warrant for Do Kwon, but he is missing.

Do Kwon is now a fugitive in 195 countries after Seoul prosecutors placed him to Interpol's red list. Do Kwon hasn't commented since then. The red list allows any country's local authorities to apprehend Do Kwon.

Do Dwon and Terraform Labs were believed to have moved to Singapore days before the $40 billion wipeout, but Singapore authorities said he fled the country on September 17. Do Kwon tweeted that he wasn't on the run and cited privacy concerns.

Do Kwon was not on the red list at the time and said he wasn't "running," only to reply to his own tweet saying he hasn't jogged in a while and needed to trim calories.

Whether or not it makes sense to read too much into this, the reality is that Do Kwon is now on Interpol red list, despite the firmly asserts on twitter that he does absolutely nothing to hide.

UPDATE:

South Korean authorities are investigating alleged withdrawals of over $60 million U.S. and seeking to freeze these assets. Korean authorities believe a new wallet exchanged over 3000 BTC through OKX and Kucoin.

Do Kwon and the Luna Foundation Guard (of whom Do Kwon is a key member of) have declined all charges and dubbed this disinformation.

Singapore's Luna Foundation Guard (LFG) manages the Terra Ecosystem.

The Legal Situation

Multiple governments are searching for Do Kwon and five other Terraform Labs employees for financial markets legislation crimes.

South Korean authorities arrested a man suspected of tax fraud and Ponzi scheme.

The U.S. SEC is also examining Terraform Labs on how UST was advertised as a stablecoin. No legal precedent exists, so it's unclear what's illegal.

The future of Terraform Labs, Terra, and Terra 2 is unknown, and despite what Twitter shills say about LUNC, the company remains in limbo awaiting a decision that will determine its fate. This project isn't a wise investment.

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Camilla Dudley

Camilla Dudley

3 years ago

How to gain Twitter followers: A 101 Guide

No wonder brands use Twitter to reach their audience. 53% of Twitter users buy new products first. 

Twitter growth does more than make your brand look popular. It helps clients trust your business. It boosts your industry standing. It shows clients, prospects, and even competitors you mean business.

How can you naturally gain Twitter followers?

  • Share useful information

  • Post visual content

  • Tweet consistently

  • Socialize

  • Spread your @name everywhere.

  • Use existing customers

  • Promote followers

Share useful information

Twitter users join conversations and consume material. To build your followers, make sure your material appeals to them and gives value, whether it's sales, product lessons, or current events.

Use Twitter Analytics to learn what your audience likes.

Explore popular topics by utilizing relevant keywords and hashtags. Check out this post on how to use Twitter trends.

Post visual content

97% of Twitter users focus on images, so incorporating media can help your Tweets stand out. Visuals and videos make content more engaging and memorable.

Tweet often

Your audience should expect regular content updates. Plan your ideas and tweet during crucial seasons and events with a content calendar.

Socialize

Twitter connects people. Do more than tweet. Follow industry leaders. Retweet influencers, engage with thought leaders, and reply to mentions and customers to boost engagement.

Micro-influencers can promote your brand or items. They can help you gain new audiences' trust.

Spread your @name everywhere.

Maximize brand exposure. Add a follow button on your website, link to it in your email signature and newsletters, and promote it on business cards or menus.

Use existing customers

Emails can be used to find existing Twitter clients. Upload your email contacts and follow your customers on Twitter to start a dialogue.

Promote followers

Run a followers campaign to boost your organic growth. Followers campaigns promote your account to a particular demographic, and you only pay when someone follows you.

Consider short campaigns to enhance momentum or an always-on campaign to gain new followers.

Increasing your brand's Twitter followers takes effort and experimentation, but the payback is huge.

👋 Follow me on twitter

James White

James White

3 years ago

I read three of Elon Musk's suggested books (And His Taste Is Incredible)

A reading list for successful people

Daniel Oberhaus via Flickr

Elon Musk reads and talks. So, one learns. Many brilliant individuals & amazing literature.

This article recommends 3 Elon Musk novels. All of them helped me succeed. Hope they'll help you.

Douglas Adams's The Hitchhiker's Guide to the Galaxy

Page Count: 193
Rating on Goodreads: 4.23

Arthur Dent is pulled off Earth by a buddy seconds before it's razed for a cosmic motorway. The trio hitchhikes through space and gets into problems.

I initially read Hitchhiker's as a child. To evade my mum, I'd read with a flashlight under the covers. She'd scold at me for not sleeping on school nights when she found out. Oops.

The Hitchhiker's Guide to the Galaxy is lighthearted science fiction.

Goodreads

My favorite book quotes are:

  • “Space is big. You won’t believe how vastly, hugely, mind-bogglingly big it is. I mean, you may think it’s a long way down the road to the chemist’s, but that’s just peanuts to space.”

  • “Far out in the uncharted backwaters of the unfashionable end of the western spiral arm of the Galaxy lies a small unregarded yellow sun. Orbiting this at a distance of roughly ninety-two million miles is an utterly insignificant little blue-green planet whose ape-descended life forms are so amazingly primitive that they still think digital watches are a pretty neat idea.”

  • “On planet Earth, man had always assumed that he was more intelligent than dolphins because he had achieved so much — the wheel, New York, wars, and so on — whilst all the dolphins had ever done was muck about in the water having a good time. But conversely, the dolphins had always believed that they were far more intelligent than man — for precisely the same reasons.”

the Sun Tzu book The Art Of War

Page Count: 273
Rating on Goodreads: 3.97

It's a classic. You may apply The Art of War's ideas to (nearly) every facet of life. Ex:

  • Pick your fights.

  • Keep in mind that timing is crucial.

  • Create a backup plan in case something goes wrong.

  • Obstacles provide us a chance to adapt and change.

This book was my first. Since then, I'm a more strategic entrepreneur. Excellent book. And read it ASAP!

Goodreads

My favorite book quotes are:

  • “Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.”

  • “Engage people with what they expect; it is what they are able to discern and confirms their projections. It settles them into predictable patterns of response, occupying their minds while you wait for the extraordinary moment — that which they cannot anticipate.”

  • “If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained, you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”

Peter Thiel's book Zero to One

Page Count: 195
Rating on Goodreads: 4.18

Peter argues the best money-making strategies are typically unproven. Entrepreneurship should never have a defined path to success. Whoever says differently is lying.

Zero to One explores technology and society. Peter is a philosophy major and law school graduate, which informs the work.

Peters' ideas, depth, and intellect stood out in Zero to One. It's a top business book.

Goodreads

My favorite book quotes are:

  • “The most valuable businesses of coming decades will be built by entrepreneurs who seek to empower people rather than try to make them obsolete.”

  • “The next Bill Gates will not build an operating system. The next Larry Page or Sergey Brin won’t make a search engine. And the next Mark Zuckerberg won’t create a social network. If you are copying these guys, you aren’t learning from them.”

  • “If your goal is to never make a mistake in your life, you shouldn’t look for secrets. The prospect of being lonely but right — dedicating your life to something that no one else believes in — is already hard. The prospect of being lonely and wrong can be unbearable.”

SAHIL SAPRU

SAHIL SAPRU

3 years ago

Growth tactics that grew businesses from 1 to 100

Source: Freshworks

Everyone wants a scalable startup.

Innovation helps launch a startup. The secret to a scalable business is growth trials (from 1 to 100).

Growth marketing combines marketing and product development for long-term growth.

Today, I'll explain growth hacking strategies popular startups used to scale.

1/ A Facebook user's social value is proportional to their friends.

Facebook built its user base using content marketing and paid ads. Mark and his investors feared in 2007 when Facebook's growth stalled at 90 million users.

Chamath Palihapitiya was brought in by Mark.

The team tested SEO keywords and MAU chasing. The growth team introduced “people you may know

This feature reunited long-lost friends and family. Casual users became power users as the retention curve flattened.

Growth Hack Insights: With social network effect the value of your product or platform increases exponentially if you have users you know or can relate with.

2/ Airbnb - Focus on your value propositions

Airbnb nearly failed in 2009. The company's weekly revenue was $200 and they had less than 2 months of runway.

Enter Paul Graham. The team noticed a pattern in 40 listings. Their website's property photos sucked.

Why?

Because these photos were taken with regular smartphones. Users didn't like the first impression.

Graham suggested traveling to New York to rent a camera, meet with property owners, and replace amateur photos with high-resolution ones.

A week later, the team's weekly revenue doubled to $400, indicating they were on track.

Growth Hack Insights: When selling an “online experience” ensure that your value proposition is aesthetic enough for users to enjoy being associated with them.

3/ Zomato - A company's smartphone push ensured growth.

Zomato delivers food. User retention was a challenge for the founders. Indian food customers are notorious for switching brands at the drop of a hat.

Zomato wanted users to order food online and repeat orders throughout the week.

Zomato created an attractive website with “near me” keywords for SEO indexing.

Zomato gambled to increase repeat orders. They only allowed mobile app food orders.

Zomato thought mobile apps were stickier. Product innovations in search/discovery/ordering or marketing campaigns like discounts/in-app notifications/nudges can improve user experience.

Zomato went public in 2021 after users kept ordering food online.

Growth Hack Insights: To improve user retention try to build platforms that build user stickiness. Your product and marketing team will do the rest for them.

4/ Hotmail - Signaling helps build premium users.

Ever sent or received an email or tweet with a sign — sent from iPhone?

Hotmail did it first! One investor suggested Hotmail add a signature to every email.

Overnight, thousands joined the company. Six months later, the company had 1 million users.

When serving an existing customer, improve their social standing. Signaling keeps the top 1%.

5/ Dropbox - Respect loyal customers

Dropbox is a company that puts people over profits. The company prioritized existing users.

Dropbox rewarded loyal users by offering 250 MB of free storage to anyone who referred a friend. The referral hack helped Dropbox get millions of downloads in its first few months.

Growth Hack Insights: Think of ways to improve the social positioning of your end-user when you are serving an existing customer. Signaling goes a long way in attracting the top 1% to stay.

These experiments weren’t hacks. Hundreds of failed experiments and user research drove these experiments. Scaling up experiments is difficult.

Contact me if you want to grow your startup's user base.