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

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
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.

Ren & Heinrich
3 years ago
200 DeFi Projects were examined. Here is what I learned.
I analyze the top 200 DeFi crypto projects in this article.
This isn't a study. The findings benefit crypto investors.
Let’s go!
A set of data
I analyzed data from defillama.com. In my analysis, I used the top 200 DeFis by TVL in October 2022.
Total Locked Value
The chart below shows platform-specific locked value.
14 platforms had $1B+ TVL. 65 platforms have $100M-$1B TVL. The remaining 121 platforms had TVLs below $100 million, with the lowest being $23 million.
TVLs are distributed Pareto. Top 40% of DeFis account for 80% of TVLs.
Compliant Blockchains
Ethereum's blockchain leads DeFi. 96 of the examined projects offer services on Ethereum. Behind BSC, Polygon, and Avalanche.
Five platforms used 10+ blockchains. 36 between 2-10 159 used 1 blockchain.
Use Cases for DeFi
The chart below shows platform use cases. Each platform has decentralized exchanges, liquid staking, yield farming, and lending.
These use cases are DefiLlama's main platform features.
Which use case costs the most? Chart explains. Collateralized debt, liquid staking, dexes, and lending have high TVLs.
The DeFi Industry
I compared three high-TVL platforms (Maker DAO, Balancer, AAVE). The columns show monthly TVL and token price changes. The graph shows monthly Bitcoin price changes.
Each platform's market moves similarly.
Probably because most DeFi deposits are cryptocurrencies. Since individual currencies are highly correlated with Bitcoin, it's not surprising that they move in unison.
Takeaways
This analysis shows that the most common DeFi services (decentralized exchanges, liquid staking, yield farming, and lending) also have the highest average locked value.
Some projects run on one or two blockchains, while others use 15 or 20. Our analysis shows that a project's blockchain count has no correlation with its success.
It's hard to tell if certain use cases are rising. Bitcoin's price heavily affects the entire DeFi market.
TVL seems to be a good indicator of a DeFi platform's success and quality. Higher TVL platforms are cheaper. They're a better long-term investment because they gain or lose less value than DeFis with lower TVLs.
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Eitan Levy
3 years ago
The Top 8 Growth Hacking Techniques for Startups
The Top 8 Growth Hacking Techniques for Startups

These startups, and how they used growth-hack marketing to flourish, are some of the more ethical ones, while others are less so.
Before the 1970 World Cup began, Puma paid footballer Pele $120,000 to tie his shoes. The cameras naturally focused on Pele and his Pumas, causing people to realize that Puma was the top football brand in the world.
Early workers of Uber canceled over 5,000 taxi orders made on competing applications in an effort to financially hurt any of their rivals.
PayPal developed a bot that advertised cheap goods on eBay, purchased them, and paid for them with PayPal, fooling eBay into believing that customers preferred this payment option. Naturally, Paypal became eBay's primary method of payment.
Anyone renting a space on Craigslist had their emails collected by AirBnB, who then urged them to use their service instead. A one-click interface was also created to list immediately on AirBnB from Craigslist.
To entice potential single people looking for love, Tinder developed hundreds of bogus accounts of attractive people. Additionally, for at least a year, users were "accidentally" linked.
Reddit initially created a huge number of phony accounts and forced them all to communicate with one another. It eventually attracted actual users—the real meaning of "fake it 'til you make it"! Additionally, this gave Reddit control over the tone of voice they wanted for their site, which is still present today.
To disrupt the conferences of their main rival, Salesforce recruited fictitious protestors. The founder then took over all of the event's taxis and gave a 45-minute pitch for his startup. No place to hide!
When a wholesaler required a minimum purchase of 10, Amazon CEO Jeff Bezos wanted a way to purchase only one book from them. A wholesaler would deliver the one book he ordered along with an apology for the other eight books after he discovered a loophole and bought the one book before ordering nine books about lichens. On Amazon, he increased this across all of the users.
Original post available here

Hudson Rennie
3 years ago
Meet the $5 million monthly controversy-selling King of Toxic Masculinity.
Trigger warning — Andrew Tate is running a genius marketing campaign
Andrew Tate is a 2022 internet celebrity.
Kickboxing world champion became rich playboy with controversial views on gender roles.
Andrew's get-rich-quick scheme isn't new. His social media popularity is impressive.
He’s currently running one of the most genius marketing campaigns in history.
He pulls society's pendulum away from diversity and inclusion and toward diversion and exclusion. He's unstoppable.
Here’s everything you need to know about Andrew Tate. And how he’s playing chess while the world plays checkers.
Cobra Tate is the name he goes by.
American-born, English-raised entrepreneur Andrew Tate lives in Romania.
Romania? Says Andrew,
“I prefer a country in which corruption is available to everyone.”
Andrew was a professional kickboxer with the ring moniker Cobra before starting Hustlers University.
Before that, he liked chess and worshipped his father.
Emory Andrew Tate III is named after his grandmaster chess player father.
Emory was the first black-American chess champion. He was military, martial arts-trained, and multilingual. A superhuman.
He lived in his car to make ends meet.
Andrew and Tristan relocated to England with their mother when their parents split.
It was there that Andrew began his climb toward becoming one of the internet’s greatest villains.
Andrew fell in love with kickboxing.
Andrew spent his 20s as a professional kickboxer and reality TV star, featuring on Big Brother UK and The Ultimate Traveller.
These 3 incidents, along with a chip on his shoulder, foreshadowed Andrews' social media breakthrough.
Chess
Combat sports
Reality television
A dangerous trio.
Andrew started making money online after quitting kickboxing in 2017 due to an eye issue.
Andrew didn't suddenly become popular.
Andrew's web work started going viral in 2022.
Due to his contentious views on patriarchy and gender norms, he's labeled the King of Toxic Masculinity. His most contentious views (trigger warning):
“Women are intrinsically lazy.”
“Female promiscuity is disgusting.”
“Women shouldn’t drive cars or fly planes.”
“A lot of the world’s problems would be solved if women had their body count tattooed on their foreheads.”
Andrew's two main beliefs are:
“These are my personal opinions based on my experiences.”
2. “I believe men are better at some things and women are better at some things. We are not equal.”
Andrew intentionally offends.
Andrew's thoughts began circulating online in 2022.
In July 2022, he was one of the most Googled humans, surpassing:
Joe Biden
Donald Trump
Kim Kardashian
Andrews' rise is a mystery since no one can censure or suppress him. This is largely because Andrew nor his team post his clips.
But more on that later.
Andrew's path to wealth.
Andrew Tate is a self-made millionaire. His morality is uncertain.
Andrew and Tristan needed money soon after retiring from kickboxing.
“I owed some money to some dangerous people. I had $70K and needed $100K to stay alive.”
Andrews lost $20K on roulette at a local casino.
Andrew had one week to make $50,000, so he started planning. Andrew locked himself in a chamber like Thomas Edison to solve an energy dilemma.
He listed his assets.
Physical strength (but couldn’t fight)
a BMW (worth around $20K)
Intelligence (but no outlet)
A lightbulb.
He had an epiphany after viewing a webcam ad. He sought aid from women, ironically. His 5 international girlfriends are assets.
Then, a lightbulb.
Andrew and Tristan messaged and flew 7 women to a posh restaurant. Selling desperation masked as opportunity, Andrew pitched his master plan:
A webcam business — with a 50/50 revenue split.
5 women left.
2 stayed.
Andrew Tate, a broke kickboxer, became Top G, Cobra Tate.
The business model was simple — yet sad.
Andrew's girlfriends moved in with him and spoke online for 15+ hours a day. Andrew handled ads and equipment as the women posed.
Andrew eventually took over their keyboards, believing he knew what men wanted more than women.
Andrew detailed on the Full Send Podcast how he emotionally manipulated men for millions. They sold houses, automobiles, and life savings to fuel their companionship addiction.
When asked if he felt bad, Andrew said,
“F*ck no.“
Andrew and Tristan wiped off debts, hired workers, and diversified.
Tristan supervised OnlyFans models.
Andrew bought Romanian casinos and MMA league RXF (Real Xtreme Fighting).
Pandemic struck suddenly.
Andrew couldn't run his 2 businesses without a plan. Another easy moneymaker.
He banked on Hustlers University.
The actual cause of Andrew's ubiquity.
On a Your Mom’s House episode Andrew's 4 main revenue sources:
Hustler’s University
2. Owning casinos in Romania
3. Owning 10% of the Romanian MMA league “RXF”
4. “The War Room” — a society of rich and powerful men
When the pandemic hit, 3/4 became inoperable.
So he expanded Hustlers University.
But what is Hustler’s University?
Andrew says Hustlers University teaches 18 wealth-building tactics online. Examples:
Real estate
Copywriting
Amazon FBA
Dropshipping
Flipping Cryptos
How to swiftly become wealthy.
Lessons are imprecise, rudimentary, and macro-focused, say reviews. Invest wisely, etc. Everything is free online.
You pay for community. One unique income stream.
The only money-making mechanism that keeps the course from being a scam.
The truth is, many of Andrew’s students are actually making money. Maybe not from the free YouTube knowledge Andrew and his professors teach in the course, but through Hustler’s University’s affiliate program.
Affiliates earn 10% commission for each new student = $5.
Students can earn $10 for each new referral in the first two months.
Andrew earns $50 per membership per month.
This affiliate program isn’t anything special — in fact, it’s on the lower end of affiliate payouts. Normally, it wouldn’t be very lucrative.
But it has one secret weapon— Andrew and his viral opinions.
Andrew is viral. Andrew went on a media tour in January 2022 after appearing on Your Mom's House.
And many, many more…
He chatted with Twitch streamers. Hustlers University wanted more controversy (and clips).
Here’s the strategy behind Hustler’s University that has (allegedly) earned students upwards of $10K per month:
Make a social media profile with Andrew Tates' name and photo.
Post any of the online videos of Andrews that have gone viral.
Include a referral link in your bio.
Effectively simple.
Andrew's controversy attracts additional students. More student clips circulate as more join. Andrew's students earn more and promote the product as he goes viral.
A brilliant plan that's functioning.
At the beginning of his media tour, Hustler’s University had 5,000 students. 6 months in, and he now has over 100,000.
One income stream generates $5 million every month.
Andrew's approach is not new.
But it is different.
In the early 2010s, Tai Lopez dominated the internet.
His viral video showed his house.
“Here in my garage. Just bought this new Lamborghini.”
Tais' marketing focused on intellect, not strength, power, and wealth to attract women.
How reading quicker leads to financial freedom in 67 steps.
Years later, it was revealed that Tai Lopez rented the mansion and Lamborghini as a marketing ploy to build social proof. Meanwhile, he was living in his friend’s trailer.
Faked success is an old tactic.
Andrew is doing something similar. But with one major distinction.
Andrew outsources his virality — making him nearly impossible to cancel.
In 2022, authorities searched Andrews' estate over human trafficking suspicions. Investigation continues despite withdrawn charges.
Andrew's divisive nature would normally get him fired. Andrew's enterprises and celebrity don't rely on social media.
He doesn't promote or pay for ads. Instead, he encourages his students and anyone wishing to get rich quick to advertise his work.
Because everything goes through his affiliate program. Old saying:
“All publicity is good publicity.”
Final thoughts: it’s ok to feel triggered.
Tate is divisive.
His emotionally charged words are human nature. Andrews created the controversy.
It's non-personal.
His opinions are those of one person. Not world nor generational opinion.
Briefly:
It's easy to understand why Andrews' face is ubiquitous. Money.
The world wide web is a chessboard. Misdirection is part of it.
It’s not personal, it’s business.
Controversy sells
Sometimes understanding the ‘why’, can help you deal with the ‘what.’

The Secret Developer
3 years ago
What Elon Musk's Take on Bitcoin Teaches Us
Tesla Q2 earnings revealed unethical dealings.
As of end of Q2, we have converted approximately 75% of our Bitcoin purchases into fiat currency
That’s OK then, isn’t it?
Elon Musk, Tesla's CEO, is now untrustworthy.
It’s not about infidelity, it’s about doing the right thing
And what can we learn?
The Opening Remark
Musk tweets on his (and Tesla's) future goals.
Don’t worry, I’m not expecting you to read it.
What's crucial?
Tesla will not be selling any Bitcoin
The Situation as It Develops
2021 Tesla spent $1.5 billion on Bitcoin. In 2022, they sold 75% of the ownership for $946 million.
That’s a little bit of a waste of money, right?
Musk predicted the reverse would happen.
What gives? Why would someone say one thing, then do the polar opposite?
The Justification For Change
Tesla's public. They must follow regulations. When a corporation trades, they must record what happens.
At least this keeps Musk some way in line.
We now understand Musk and Tesla's actions.
Musk claimed that Tesla sold bitcoins to maximize cash given the unpredictability of COVID lockdowns in China.
Tesla may buy Bitcoin in the future, he said.
That’s fine then. He’s not knocking the NFT at least.
Tesla has moved investments into cash due to China lockdowns.
That doesn’t explain the 180° though
Musk's Tweet isn't company policy. Therefore, the CEO's change of heart reflects the organization. Look.
That's okay, since
Leaders alter their positions when circumstances change.
Leaders must adapt to their surroundings. This isn't embarrassing; it's a leadership prerequisite.
Yet
The Man
Someone stated if you're not in the office full-time, you need to explain yourself. He doesn't treat his employees like adults.
This is the individual mentioned in the quote.
If Elon was not happy, you knew it. Things could get nasty
also, He fired his helper for requesting a raise.
This public persona isn't good. Without mentioning his disastrous performances on Twitter (pedo dude) or Joe Rogan. This image sums up the odd Podcast appearance:
Which describes the man.
I wouldn’t trust this guy to feed a cat
What we can discover
When Musk's company bet on Bitcoin, what happened?
Exactly what we would expect
The company's position altered without the CEO's awareness. He seems uncaring.
This article is about how something happened, not what happened. Change of thinking requires contrition.
This situation is about a lack of respect- although you might argue that followers on Twitter don’t deserve any
Tesla fans call the sale a great move.
It's absurd.
As you were, then.
Conclusion
Good luck if you gamble.
When they pay off, congrats!
When wrong, admit it.
You must take chances if you want to succeed.
Risks don't always pay off.
Mr. Musk lacks insight and charisma to combine these two attributes.
I don’t like him, if you hadn’t figured.
It’s probably all of the cheating.
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