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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

Miguel Saldana

Miguel Saldana

3 years ago

Crypto Inheritance's Catch-22

Security, privacy, and a strategy!

How to manage digital assets in worst-case scenarios is a perennial crypto concern. Since blockchain and bitcoin technology is very new, this hasn't been a major issue. Many early developers are still around, and many groups created around this technology are young and feel they have a lot of life remaining. This is why inheritance and estate planning in crypto should be handled promptly. As cryptocurrency's intrinsic worth rises, many people in the ecosystem are holding on to assets that might represent generational riches. With that much value, it's crucial to have a plan. Creating a solid plan entails several challenges.

  • the initial hesitation in coming up with a plan

  • The technical obstacles to ensuring the assets' security and privacy

  • the passing of assets from a deceased or incompetent person

  • Legal experts' lack of comprehension and/or understanding of how to handle and treat cryptocurrency.

This article highlights several challenges, a possible web3-native solution, and how to learn more.

The Challenge of Inheritance:

One of the biggest hurdles to inheritance planning is starting the conversation. As humans, we don't like to think about dying. Early adopters will experience crazy gains as cryptocurrencies become more popular. Creating a plan is crucial if you wish to pass on your riches to loved ones. Without a plan, the technical and legal issues I barely mentioned above would erode value by requiring costly legal fees and/or taxes, and you could lose everything if wallets and assets are not distributed appropriately (associated with the private keys). Raising awareness of the consequences of not having a plan should motivate people to make one.

Controlling Change:

Having an inheritance plan for your digital assets is crucial, but managing the guts and bolts poses a new set of difficulties. Privacy and security provided by maintaining your own wallet provide different issues than traditional finances and assets. Traditional finance is centralized (say a stock brokerage firm). You can assign another person to handle the transfer of your assets. In crypto, asset transfer is reimagined. One may suppose future transaction management is doable, but the user must consent, creating an impossible loop.

  • I passed away and must send a transaction to the person I intended to deliver it to.

  • I have to confirm or authorize the transaction, but I'm dead.

In crypto, scheduling a future transaction wouldn't function. To transfer the wallet and its contents, we'd need the private keys and/or seed phrase. Minimizing private key exposure is crucial to protecting your crypto from hackers, social engineering, and phishing. People have lost private keys after utilizing Life Hack-type tactics to secure them. People that break and hide their keys, lose them, or make them unreadable won't help with managing and/or transferring. This will require a derived solution.

Legal Challenges and Implications

Unlike routine cryptocurrency transfers and transactions, local laws may require special considerations. Even in the traditional world, estate/inheritance taxes, how assets will be split, and who executes the will must be considered. Many lawyers aren't crypto-savvy, which complicates the matter. There will be many hoops to jump through to safeguard your crypto and traditional assets and give them to loved ones.

Knowing RUFADAA/UFADAA, depending on your state, is vital for Americans. UFADAA offers executors and trustees access to online accounts (which crypto wallets would fall into). RUFADAA was changed to limit access to the executor to protect assets. RUFADAA outlines how digital assets are administered following death and incapacity in the US.

A Succession Solution

Having a will and talking about who would get what is the first step to having a solution, but using a Dad Mans Switch is a perfect tool for such unforeseen circumstances. As long as the switch's controller has control, nothing happens. Losing control of the switch initiates a state transition.

Subway or railway operations are examples. Modern control systems need the conductor to hold a switch to keep the train going. If they can't, the train stops.

Enter Sarcophagus

Sarcophagus is a decentralized dead man's switch built on Ethereum and Arweave. Sarcophagus allows actors to maintain control of their possessions even while physically unable to do so. Using a programmable dead man's switch and dual encryption, anything can be kept and passed on. This covers assets, secrets, seed phrases, and other use cases to provide authority and control back to the user and release trustworthy services from this work. Sarcophagus is built on a decentralized, transparent open source codebase. Sarcophagus is there if you're unprepared.

Olga Kharif

3 years ago

A month after freezing customer withdrawals, Celsius files for bankruptcy.

Alex Mashinsky, CEO of Celsius, speaks at Web Summit 2021 in Lisbon. 

Celsius Network filed for Chapter 11 bankruptcy a month after freezing customer withdrawals, joining other crypto casualties.

Celsius took the step to stabilize its business and restructure for all stakeholders. The filing was done in the Southern District of New York.

The company, which amassed more than $20 billion by offering 18% interest on cryptocurrency deposits, paused withdrawals and other functions in mid-June, citing "extreme market conditions."

As the Fed raises interest rates aggressively, it hurts risk sentiment and squeezes funding costs. Voyager Digital Ltd. filed for Chapter 11 bankruptcy this month, and Three Arrows Capital has called in liquidators.

Celsius called the pause "difficult but necessary." Without the halt, "the acceleration of withdrawals would have allowed certain customers to be paid in full while leaving others to wait for Celsius to harvest value from illiquid or longer-term asset deployment activities," it said.

Celsius declined to comment. CEO Alex Mashinsky said the move will strengthen the company's future.

The company wants to keep operating. It's not requesting permission to allow customer withdrawals right now; Chapter 11 will handle customer claims. The filing estimates assets and liabilities between $1 billion and $10 billion.

Celsius is advised by Kirkland & Ellis, Centerview Partners, and Alvarez & Marsal.

Yield-promises

Celsius promised 18% returns on crypto loans. It lent those coins to institutional investors and participated in decentralized-finance apps.

When TerraUSD (UST) and Luna collapsed in May, Celsius pulled its funds from Terra's Anchor Protocol, which offered 20% returns on UST deposits. Recently, another large holding, staked ETH, or stETH, which is tied to Ether, became illiquid and discounted to Ether.

The lender is one of many crypto companies hurt by risky bets in the bear market. Also, Babel halted withdrawals. Voyager Digital filed for bankruptcy, and crypto hedge fund Three Arrows Capital filed for Chapter 15 bankruptcy.

According to blockchain data and tracker Zapper, Celsius repaid all of its debt in Aave, Compound, and MakerDAO last month.

Celsius charged Symbolic Capital Partners Ltd. 2,000 Ether as collateral for a cash loan on June 13. According to company filings, Symbolic was charged 2,545.25 Ether on June 11.

In July 6 filings, it said it reshuffled its board, appointing two new members and firing others.

Langston Thomas

3 years ago

A Simple Guide to NFT Blockchains

Ethereum's blockchain rules NFTs. Many consider it the one-stop shop for NFTs, and it's become the most talked-about and trafficked blockchain in existence.

Other blockchains are becoming popular in NFTs. Crypto-artists and NFT enthusiasts have sought new places to mint and trade NFTs due to Ethereum's high transaction costs and environmental impact.

When choosing a blockchain to mint on, there are several factors to consider. Size, creator costs, consumer spending habits, security, and community input are important. We've created a high-level summary of blockchains for NFTs to help clarify the fast-paced world of web3 tech.

Ethereum

Ethereum currently has the most NFTs. It's decentralized and provides financial and legal services without intermediaries. It houses popular NFT marketplaces (OpenSea), projects (CryptoPunks and the Bored Ape Yacht Club), and artists (Pak and Beeple).

It's also expensive and energy-intensive. This is because Ethereum works using a Proof-of-Work (PoW) mechanism. PoW requires computers to solve puzzles to add blocks and transactions to the blockchain. Solving these puzzles requires a lot of computer power, resulting in astronomical energy loss.

You should consider this blockchain first due to its popularity, security, decentralization, and ease of use.

Solana

Solana is a fast programmable blockchain. Its proof-of-history and proof-of-stake (PoS) consensus mechanisms eliminate complex puzzles. Reduced validation times and fees result.

PoS users stake their cryptocurrency to become a block validator. Validators get SOL. This encourages and rewards users to become stakers. PoH works with PoS to cryptographically verify time between events. Solana blockchain ensures transactions are in order and found by the correct leader (validator).

Solana's PoS and PoH mechanisms keep transaction fees and times low. Solana isn't as popular as Ethereum, so there are fewer NFT marketplaces and blockchain traders.

Tezos

Tezos is a greener blockchain. Tezos rose in 2021. Hic et Nunc was hailed as an economic alternative to Ethereum-centric marketplaces until Nov. 14, 2021.

Similar to Solana, Tezos uses a PoS consensus mechanism and only a PoS mechanism to reduce computational work. This blockchain uses two million times less energy than Ethereum. It's cheaper than Ethereum (but does cost more than Solana).

Tezos is a good place to start minting NFTs in bulk. Objkt is the largest Tezos marketplace.

Flow

Flow is a high-performance blockchain for NFTs, games, and decentralized apps (dApps). Flow is built with scalability in mind, so billions of people could interact with NFTs on the blockchain.

Flow became the NBA's blockchain partner in 2019. Flow, a product of Dapper labs (the team behind CryptoKitties), launched and hosts NBA Top Shot, making the blockchain integral to the popularity of non-fungible tokens.

Flow uses PoS to verify transactions, like Tezos. Developers are working on a model to handle 10,000 transactions per second on the blockchain. Low transaction fees.

Flow NFTs are tradeable on Blocktobay, OpenSea, Rarible, Foundation, and other platforms. NBA, NFL, UFC, and others have launched NFT marketplaces on Flow. Flow isn't as popular as Ethereum, resulting in fewer NFT marketplaces and blockchain traders.

Asset Exchange (WAX)

WAX is king of virtual collectibles. WAX is popular for digitalized versions of legacy collectibles like trading cards, figurines, memorabilia, etc.

Wax uses a PoS mechanism, but also creates carbon offset NFTs and partners with Climate Care. Like Flow, WAX transaction fees are low, and network fees are redistributed to the WAX community as an incentive to collectors.

WAX marketplaces host Topps, NASCAR, Hot Wheels, and cult classic film franchises like Godzilla, The Princess Bride, and Spiderman.

Binance Smart Chain

BSC is another good option for balancing fees and performance. High-speed transactions and low fees hurt decentralization. BSC is most centralized.

Binance Smart Chain uses Proof of Staked Authority (PoSA) to support a short block time and low fees. The 21 validators needed to run the exchange switch every 24 hours. 11 of the 21 validators are directly connected to the Binance Crypto Exchange, according to reports.

While many in the crypto and NFT ecosystems dislike centralization, the BSC NFT market picked up speed in 2021. OpenBiSea, AirNFTs, JuggerWorld, and others are gaining popularity despite not having as robust an ecosystem as Ethereum.

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Jayden Levitt

Jayden Levitt

3 years ago

Starbucks' NFT Project recently defeated its rivals.

The same way Amazon killed bookstores. You just can’t see it yet.

Photo by Jason Redmond | AFP | Getty Images

Shultz globalized coffee. Before Starbucks, coffee sucked.

All accounts say 1970s coffee was awful.

Starbucks had three stores selling ground Indonesian coffee in the 1980s.

What a show!

A year after joining the company at 29, Shultz traveled to Italy for R&D.

He noticed the coffee shops' sense of theater and community and realized Starbucks was in the wrong business.

Integrating coffee and destination created a sense of community in the store.

Brilliant!

He told Starbucks' founders about his experience.

They disapproved.

For two years.

Shultz left and opened an Italian coffee shop chain like any good entrepreneur.

Starbucks ran into financial trouble, so the founders offered to sell to Shultz.

Shultz bought Starbucks in 1987 for $3.8 million, including six stores and a payment plan.

Starbucks is worth $100.79Billion, per Google Finance.

26,500 times Shultz's initial investment

Starbucks is releasing its own NFT Platform under Shultz and his early Vision.

This year, Starbucks Odyssey launches. The new digital experience combines a Loyalty Rewards program with NFT.

The side chain Polygon-based platform doesn't require a Crypto Wallet. Customers can earn and buy digital assets to unlock incentives and experiences.

They've removed all friction, making it more immersive and convenient than a coffee shop.

Brilliant!

NFTs are the access coupon to their digital community, but they don't highlight the technology.

They prioritize consumer experience by adding non-technical users to Web3. Their collectables are called journey stamps, not NFTs.

No mention of bundled gas fees.

Brady Brewer, Starbucks' CMO, said;

“It happens to be built on blockchain and web3 technologies, but the customer — to be honest — may very well not even know that what they’re doing is interacting with blockchain technology. It’s just the enabler,”

Rewards members will log into a web app using their loyalty program credentials to access Starbucks Odyssey. They won't know about blockchain transactions.

Join the waitlist here

Starbucks has just dealt its rivals a devastating blow.

It generates more than ten times the revenue of its closest competitor Costa Coffee.

The coffee giant is booming.

Credit — Statista.com

Starbucks is ahead of its competitors. No wonder.

They have an innovative, adaptable leadership team.

Starbucks' DNA challenges the narrative, especially when others reject their ideas.

I’m off for a cappuccino.

Bastian Hasslinger

Bastian Hasslinger

3 years ago

Before 2021, most startups had excessive valuations. It is currently causing issues.

Higher startup valuations are often favorable for all parties. High valuations show a business's potential. New customers and talent are attracted. They earn respect.

Everyone benefits if a company's valuation rises.

Founders and investors have always been incentivized to overestimate a company's value.

Post-money valuations were inflated by 2021 market expectations and the valuation model's mechanisms.

Founders must understand both levers to handle a normalizing market.

2021, the year of miracles

2021 must've seemed miraculous to entrepreneurs, employees, and VCs. Valuations rose, and funding resumed after the first Covid-19 epidemic caution.

In 2021, VC investments increased from $335B to $643B. 518 new worldwide unicorns vs. 134 in 2020; 951 US IPOs vs. 431.

Things can change quickly, as 2020-21 showed.

Rising interest rates, geopolitical developments, and normalizing technology conditions drive down share prices and tech company market caps in 2022. Zoom, the poster-child of early lockdown success, is down 37% since 1st Jan.

Once-inflated valuations can become a problem in a normalizing market, especially for founders, employees, and early investors.

the reason why startups are always overvalued

To see why inflated valuations are a problem, consider one of its causes.

Private company values only fluctuate following a new investment round, unlike publicly-traded corporations. The startup's new value is calculated simply:

(Latest round share price) x (total number of company shares)

This is the industry standard Post-Money Valuation model.

Let’s illustrate how it works with an example. If a VC invests $10M for 1M shares (at $10/share), and the company has 10M shares after the round, its Post-Money Valuation is $100M (10/share x 10M shares).

This approach might seem like the most natural way to assess a business, but the model often unintentionally overstates the underlying value of the company even if the share price paid by the investor is fair. All shares aren't equal.

New investors in a corporation will always try to minimize their downside risk, or the amount they lose if things go wrong. New investors will try to negotiate better terms and pay a premium.

How the value of a struggling SpaceX increased

SpaceX's 2008 Series D is an example. Despite the financial crisis and unsuccessful rocket launches, the company's Post-Money Valuation was 36% higher after the investment round. Why?

Series D SpaceX shares were protected. In case of liquidation, Series D investors were guaranteed a 2x return before other shareholders.

Due to downside protection, investors were willing to pay a higher price for this new share class.

The Post-Money Valuation model overpriced SpaceX because it viewed all the shares as equal (they weren't).

Why entrepreneurs, workers, and early investors stand to lose the most

Post-Money Valuation is an effective and sufficient method for assessing a startup's valuation, despite not taking share class disparities into consideration.

In a robust market, where the firm valuation will certainly expand with the next fundraising round or exit, the inflated value is of little significance.

Fairness endures. If a corporation leaves at a greater valuation, each stakeholder will receive a proportional distribution. (i.e., 5% of a $100M corporation yields $5M).

SpaceX's inherent overvaluation was never a problem. Had it been sold for less than its Post-Money Valuation, some shareholders, including founders, staff, and early investors, would have seen their ownership drop.

The unforgiving world of 2022

In 2022, founders, employees, and investors who benefited from inflated values will face below-valuation exits and down-rounds.

For them, 2021 will be a curse, not a blessing.

Some tech giants are worried. Klarna's valuation fell from $45B (Oct 21) to $30B (Jun 22), Canvas from $40B to $27B, and GoPuffs from $17B to $8.3B.

Shazam and Blue Apron have to exit or IPO at a cheaper price. Premium share classes are protected, while others receive less. The same goes for bankrupts.

Those who continue at lower valuations will lose reputation and talent. When their value declines by half, generous employee stock options become less enticing, and their ability to return anything is questioned.

What can we infer about the present situation?

Such techniques to enhance your company's value or stop a normalizing market are fiction.

The current situation is a painful reminder for entrepreneurs and a crucial lesson for future firms.

The devastating market fall of the previous six months has taught us one thing:

  1. Keep in mind that any valuation is speculative. Money Post A startup's valuation is a highly simplified approximation of its true value, particularly in the early phases when it lacks significant income or a cutting-edge product. It is merely a projection of the future and a hypothetical meter. Until it is achieved by an exit, a valuation is nothing more than a number on paper.

  2. Assume the value of your company is lower than it was in the past. Your previous valuation might not be accurate now due to substantial changes in the startup financing markets. There is little reason to think that your company's value will remain the same given the 50%+ decline in many newly listed IT companies. Recognize how the market situation is changing and use caution.

  3. Recognize the importance of the stake you hold. Each share class has a unique value that varies. Know the sort of share class you own and how additional contractual provisions affect the market value of your security. Frameworks have been provided by Metrick and Yasuda (Yale & UC) and Gornall and Strebulaev (Stanford) for comprehending the terms that affect investors' cash-flow rights upon withdrawal. As a result, you will be able to more accurately evaluate your firm and determine the worth of each share class.

  4. Be wary of approving excessively protective share terms.
    The trade-offs should be considered while negotiating subsequent rounds. Accepting punitive contractual terms could first seem like a smart option in order to uphold your inflated worth, but you should proceed with caution. Such provisions ALWAYS result in misaligned shareholders, with common shareholders (such as you and your staff) at the bottom of the list.

Matthew Royse

Matthew Royse

3 years ago

5 Tips for Concise Writing

Here's how to be clear.

I have only made this letter longer because I have not had the time to make it shorter.” — French mathematician, physicist, inventor, philosopher, and writer Blaise Pascal

Concise.

People want this. We tend to repeat ourselves and use unnecessary words.

Being vague frustrates readers. It focuses their limited attention span on figuring out what you're saying rather than your message.

Edit carefully.

Examine every word you put on paper. You’ll find a surprising number that don’t serve any purpose.” — American writer, editor, literary critic, and teacher William Zinsser

How do you write succinctly?

Here are three ways to polish your writing.

1. Delete

Your readers will appreciate it if you delete unnecessary words. If a word or phrase is essential, keep it. Don't force it.

Many readers dislike bloated sentences. Ask yourself if cutting a word or phrase will change the meaning or dilute your message.

For example, you could say, “It’s absolutely essential that I attend this meeting today, so I know the final outcome.” It’s better to say, “It’s critical I attend the meeting today, so I know the results.”

Key takeaway

Delete actually, completely, just, full, kind of, really, and totally. Keep the necessary words, cut the rest.

2. Just Do It

Don't tell readers your plans. Your readers don't need to know your plans. Who are you?

Don't say, "I want to highlight our marketing's problems." Our marketing issues are A, B, and C. This cuts 5–7 words per sentence.

Keep your reader's attention on the essentials, not the fluff. What are you doing? You won't lose readers because you get to the point quickly and don't build up.

Key takeaway

Delete words that don't add to your message. Do something, don't tell readers you will.

3. Cut Overlap

You probably repeat yourself unintentionally. You may add redundant sentences when brainstorming. Read aloud to detect overlap.

Remove repetition from your writing. It's important to edit our writing and thinking to avoid repetition.

Key Takeaway

If you're repeating yourself, combine sentences to avoid overlap.

4. Simplify

Write as you would to family or friends. Communicate clearly. Don't use jargon. These words confuse readers.

Readers want specifics, not jargon. Write simply. Done.

Most adults read at 8th-grade level. Jargon and buzzwords make speech fluffy. This confuses readers who want simple language.

Key takeaway

Ensure all audiences can understand you. USA Today's 5th-grade reading level is intentional. They want everyone to understand.

5. Active voice

Subjects perform actions in active voice. When you write in passive voice, the subject receives the action.

For example, “the board of directors decided to vote on the topic” is an active voice, while “a decision to vote on the topic was made by the board of directors” is a passive voice.

Key takeaway

Active voice clarifies sentences. Active voice is simple and concise.

Bringing It All Together

Five tips help you write clearly. Delete, just do it, cut overlap, use simple language, and write in an active voice.

Clear writing is effective. It's okay to occasionally use unnecessary words or phrases. Realizing it is key. Check your writing.

Adding words costs.

Write more concisely. People will appreciate it and read your future articles, emails, and messages. Spending extra time will increase trust and influence.

Not that the story need be long, but it will take a long while to make it short.” — Naturalist, essayist, poet, and philosopher Henry David Thoreau