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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.

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Isobel Asher Hamilton

Isobel Asher Hamilton

3 years ago

$181 million in bitcoin buried in a dump. $11 million to get them back

$181 million in bitcoin buried in a dump

James Howells lost 8,000 bitcoins. He has $11 million to get them back.

His life altered when he threw out an iPhone-sized hard drive.

Howells, from the city of Newport in southern Wales, had two identical laptop hard drives squirreled away in a drawer in 2013. One was blank; the other had 8,000 bitcoins, currently worth around $181 million.

He wanted to toss out the blank one, but the drive containing the Bitcoin went to the dump.

He's determined to reclaim his 2009 stash.

Howells, 36, wants to arrange a high-tech treasure hunt for bitcoins. He can't enter the landfill.

James Howells lost 8,000 bitcoins

Newport's city council has rebuffed Howells' requests to dig for his hard drive for almost a decade, stating it would be expensive and environmentally destructive.

I got an early look at his $11 million idea to search 110,000 tons of trash. He expects submitting it to the council would convince it to let him recover the hard disk.

110,000 tons of trash, 1 hard drive

Finding a hard disk among heaps of trash may seem Herculean.

Former IT worker Howells claims it's possible with human sorters, robot dogs, and an AI-powered computer taught to find hard drives on a conveyor belt.

His idea has two versions, depending on how much of the landfill he can search.

His most elaborate solution would take three years and cost $11 million to sort 100,000 metric tons of waste. Scaled-down version costs $6 million and takes 18 months.

He's created a team of eight professionals in AI-powered sorting, landfill excavation, garbage management, and data extraction, including one who recovered Columbia's black box data.

The specialists and their companies would be paid a bonus if they successfully recovered the bitcoin stash.

Howells: "We're trying to commercialize this project."

Howells claimed rubbish would be dug up by machines and sorted near the landfill.

Human pickers and a Max-AI machine would sort it. The machine resembles a scanner on a conveyor belt.

Remi Le Grand of Max-AI told us it will train AI to recognize Howells-like hard drives. A robot arm would select candidates.

Howells has added security charges to his scheme because he fears people would steal the hard drive.

He's budgeted for 24-hour CCTV cameras and two robotic "Spot" canines from Boston Dynamics that would patrol at night and look for his hard drive by day.

Howells said his crew met in May at the Celtic Manor Resort outside Newport for a pitch rehearsal.

Richard Hammond's narrative swings from banal to epic.

Richard Hammond filmed the meeting and created a YouTube documentary on Howells.

Hammond said of Howells' squad, "They're committed and believe in him and the idea."

Hammond: "It goes from banal to gigantic." "If I were in his position, I wouldn't have the strength to answer the door."

Howells said trash would be cleaned and repurposed after excavation. Reburying the rest.

"We won't pollute," he declared. "We aim to make everything better."

The Newport, Wales, landfill from the air. Darren Britton / Wales News

After the project is finished, he hopes to develop a solar or wind farm on the dump site. The council is unlikely to accept his vision soon.

A council representative told us, "Mr. Howells can't convince us of anything." "His suggestions constitute a significant ecological danger, which we can't tolerate and are forbidden by our permit."

Will the recovered hard drive work?

The "platter" is a glass or metal disc that holds the hard drive's data. Howells estimates 80% to 90% of the data will be recoverable if the platter isn't damaged.

Phil Bridge, a data-recovery expert who consulted Howells, confirmed these numbers.

If the platter is broken, Bridge adds, data recovery is unlikely.

Bridge says he was intrigued by the proposal. "It's an intriguing case," he added. Helping him get it back and proving everyone incorrect would be a great success story.

Who'd pay?

Swiss and German venture investors Hanspeter Jaberg and Karl Wendeborn told us they would fund the project if Howells received council permission.

Jaberg: "It's a needle in a haystack and a high-risk investment."

Howells said he had no contract with potential backers but had discussed the proposal in Zoom meetings. "Until Newport City Council gives me something in writing, I can't commit," he added.

Suppose he finds the bitcoins.

Howells said he would keep 30% of the data, worth $54 million, if he could retrieve it.

A third would go to the recovery team, 30% to investors, and the remainder to local purposes, including gifting £50 ($61) in bitcoin to each of Newport's 150,000 citizens.

Howells said he opted to spend extra money on "professional firms" to help convince the council.

What if the council doesn't approve?

If Howells can't win the council's support, he'll sue, claiming its actions constitute a "illegal embargo" on the hard drive. "I've avoided that path because I didn't want to cause complications," he stated. I wanted to cooperate with Newport's council.

Howells never met with the council face-to-face. He mentioned he had a 20-minute Zoom meeting in May 2021 but thought his new business strategy would help.

He met with Jessica Morden on June 24. Morden's office confirmed meeting.

After telling the council about his proposal, he can only wait. "I've never been happier," he said. This is our most professional operation, with the best employees.

The "crypto proponent" buys bitcoin every month and sells it for cash.

Howells tries not to think about what he'd do with his part of the money if the hard disk is found functional. "Otherwise, you'll go mad," he added.


This post is a summary. Read the full article here.

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.

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.

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Techletters

Techletters

2 years ago

Using Synthesia, DALL-E 2, and Chat GPT-3, create AI news videos

Combining AIs creates realistic AI News Videos.

Combine different AIs. Image by Lukas from Pixabay.

Powerful AI tools like Chat GPT-3 are trending. Have you combined AIs?

The 1-minute fake news video below is startlingly realistic. Artificial Intelligence developed NASA's Mars exploration breakthrough video (AI). However, integrating the aforementioned AIs generated it.

  • AI-generated text for the Chat GPT-3 based on a succinct tagline

  • DALL-E-2 AI generates an image from a brief slogan.

  • Artificial intelligence-generated avatar and speech

This article shows how to use and mix the three AIs to make a realistic news video. First, watch the video (1 minute).

Talk GPT-3

Chat GPT-3 is an OpenAI NLP model. It can auto-complete text and produce conversational responses.

Try it at the playground. The AI will write a comprehensive text from a brief tagline. Let's see what the AI generates with "Breakthrough in Mars Project" as the headline.

Open AI / GPT-3 Playground was used to generate a text based on our headline.

Amazing. Our tagline matches our complete and realistic text. Fake news can start here.

DALL-E-2

OpenAI's huge transformer-based language model DALL-E-2. Its GPT-3 basis is geared for image generation. It can generate high-quality photos from a brief phrase and create artwork and images of non-existent objects.

DALL-E-2 can create a news video background. We'll use "Breakthrough in Mars project" again. Our AI creates four striking visuals. Last.

DALL-E-2 AI was used to generate a background image based on a short tagline.

Synthesia

Synthesia lets you quickly produce videos with AI avatars and synthetic vocals.

Avatars are first. Rosie it is.

Synthesia AI was used to generate a moving avatar.

Upload and select DALL-backdrop. E-2's

Add DALL-E-2 background to Synthesia AI.

Copy the Chat GPT-3 content and choose a synthetic voice.

Copy text from GPT-3 to Synthesia AI.

Voice: English (US) Professional.

Select synthetic voice in Synthesia AI.

Finally, we generate and watch or download our video.

Synthesia AI completes the AI video.

Overview & Resources

We used three AIs to make surprisingly realistic NASA Mars breakthrough fake news in this post. Synthesia generates an avatar and a synthetic voice, therefore it may be four AIs.

These AIs created our fake news.

  • AI-generated text for the Chat GPT-3 based on a succinct tagline

  • DALL-E-2 AI generates an image from a brief slogan.

  • Artificial intelligence-generated avatar and speech

Cody Collins

Cody Collins

2 years ago

The direction of the economy is as follows.

What quarterly bank earnings reveal

Photo by Michael Dziedzic on Unsplash

Big banks know the economy best. Unless we’re talking about a housing crisis in 2007…

Banks are crucial to the U.S. economy. The Fed, communities, and investments exchange money.

An economy depends on money flow. Banks' views on the economy can affect their decision-making.

Most large banks released quarterly earnings and forward guidance last week. Others were pessimistic about the future.

What Makes Banks Confident

Bank of America's profit decreased 30% year-over-year, but they're optimistic about the economy. Comparatively, they're bullish.

Who banks serve affects what they see. Bank of America supports customers.

They think consumers' future is bright. They believe this for many reasons.

The average customer has decent credit, unless the system is flawed. Bank of America's new credit card and mortgage borrowers averaged 771. New-car loan and home equity borrower averages were 791 and 797.

2008's housing crisis affected people with scores below 620.

Bank of America and the economy benefit from a robust consumer. Major problems can be avoided if individuals maintain spending.

Reasons Other Banks Are Less Confident

Spending requires income. Many companies, mostly in the computer industry, have announced they will slow or freeze hiring. Layoffs are frequently an indication of poor times ahead.

BOA is positive, but investment banks are bearish.

Jamie Dimon, CEO of JPMorgan, outlined various difficulties our economy could confront.

But geopolitical tension, high inflation, waning consumer confidence, the uncertainty about how high rates have to go and the never-before-seen quantitative tightening and their effects on global liquidity, combined with the war in Ukraine and its harmful effect on global energy and food prices are very likely to have negative consequences on the global economy sometime down the road.

That's more headwinds than tailwinds.

JPMorgan, which helps with mergers and IPOs, is less enthusiastic due to these concerns. Incoming headwinds signal drying liquidity, they say. Less business will be done.

Final Reflections

I don't think we're done. Yes, stocks are up 10% from a month ago. It's a long way from old highs.

I don't think the stock market is a strong economic indicator.

Many executives foresee a 2023 recession. According to the traditional definition, we may be in a recession when Q2 GDP statistics are released next week.

Regardless of criteria, I predict the economy will have a terrible year.

Weekly layoffs are announced. Inflation persists. Will prices return to 2020 levels if inflation cools? Perhaps. Still expensive energy. Ukraine's war has global repercussions.

I predict BOA's next quarter earnings won't be as bullish about the consumer's strength.

Chris Moyse

Chris Moyse

3 years ago

Sony and LEGO raise $2 billion for Epic Games' metaverse

‘Kid-friendly’ project holds $32 billion valuation

Epic Games announced today that it has raised $2 billion USD from Sony Group Corporation and KIRKBI (holding company of The LEGO Group). Both companies contributed $1 billion to Epic Games' upcoming ‘metaverse' project.

“We need partners who share our vision as we reimagine entertainment and play. Our partnership with Sony and KIRKBI has found this,” said Epic Games CEO Tim Sweeney. A new metaverse will be built where players can have fun with friends and brands create creative and immersive experiences, as well as creators thrive.

Last week, LEGO and Epic Games announced their plans to create a family-friendly metaverse where kids can play, interact, and create in digital environments. The service's users' safety and security will be prioritized.

With this new round of funding, Epic Games' project is now valued at $32 billion.

“Epic Games is known for empowering creators large and small,” said KIRKBI CEO Sren Thorup Srensen. “We invest in trends that we believe will impact the world we and our children will live in. We are pleased to invest in Epic Games to support their continued growth journey, with a long-term focus on the future metaverse.”

Epic Games is expected to unveil its metaverse plans later this year, including its name, details, services, and release date.