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Howey Test and Cryptocurrencies: 'Every ICO Is a Security'
What Is the Howey Test?
To determine whether a transaction qualifies as a "investment contract" and thus qualifies as a security, the Howey Test refers to the U.S. Supreme Court cass: the Securities Act of 1933 and the Securities Exchange Act of 1934. According to the Howey Test, an investment contract exists when "money is invested in a common enterprise with a reasonable expectation of profits from others' efforts."
The test applies to any contract, scheme, or transaction. The Howey Test helps investors and project backers understand blockchain and digital currency projects. ICOs and certain cryptocurrencies may be found to be "investment contracts" under the test.
Understanding the Howey Test
The Howey Test comes from the 1946 Supreme Court case SEC v. W.J. Howey Co. The Howey Company sold citrus groves to Florida buyers who leased them back to Howey. The company would maintain the groves and sell the fruit for the owners. Both parties benefited. Most buyers had no farming experience and were not required to farm the land.
The SEC intervened because Howey failed to register the transactions. The court ruled that the leaseback agreements were investment contracts.
This established four criteria for determining an investment contract. Investing contract:
- An investment of money
- n a common enterprise
- With the expectation of profit
- To be derived from the efforts of others
In the case of Howey, the buyers saw the transactions as valuable because others provided the labor and expertise. An income stream was obtained by only investing capital. As a result of the Howey Test, the transaction had to be registered with the SEC.
Howey Test and Cryptocurrencies
Bitcoin is notoriously difficult to categorize. Decentralized, they evade regulation in many ways. Regardless, the SEC is looking into digital assets and determining when their sale qualifies as an investment contract.
The SEC claims that selling digital assets meets the "investment of money" test because fiat money or other digital assets are being exchanged. Like the "common enterprise" test.
Whether a digital asset qualifies as an investment contract depends on whether there is a "expectation of profit from others' efforts."
For example, buyers of digital assets may be relying on others' efforts if they expect the project's backers to build and maintain the digital network, rather than a dispersed community of unaffiliated users. Also, if the project's backers create scarcity by burning tokens, the test is met. Another way the "efforts of others" test is met is if the project's backers continue to act in a managerial role.
These are just a few examples given by the SEC. If a project's success is dependent on ongoing support from backers, the buyer of the digital asset is likely relying on "others' efforts."
Special Considerations
If the SEC determines a cryptocurrency token is a security, many issues arise. It means the SEC can decide whether a token can be sold to US investors and forces the project to register.
In 2017, the SEC ruled that selling DAO tokens for Ether violated federal securities laws. Instead of enforcing securities laws, the SEC issued a warning to the cryptocurrency industry.
Due to the Howey Test, most ICOs today are likely inaccessible to US investors. After a year of ICOs, then-SEC Chair Jay Clayton declared them all securities.
SEC Chairman Gensler Agrees With Predecessor: 'Every ICO Is a Security'
Howey Test FAQs
How Do You Determine If Something Is a Security?
The Howey Test determines whether certain transactions are "investment contracts." Securities are transactions that qualify as "investment contracts" under the Securities Act of 1933 and the Securities Exchange Act of 1934.
The Howey Test looks for a "investment of money in a common enterprise with a reasonable expectation of profits from others' efforts." If so, the Securities Act of 1933 and the Securities Exchange Act of 1934 require disclosure and registration.
Why Is Bitcoin Not a Security?
Former SEC Chair Jay Clayton clarified in June 2018 that bitcoin is not a security: "Cryptocurrencies: Replace the dollar, euro, and yen with bitcoin. That type of currency is not a security," said Clayton.
Bitcoin, which has never sought public funding to develop its technology, fails the SEC's Howey Test. However, according to Clayton, ICO tokens are securities.
A Security Defined by the SEC
In the public and private markets, securities are fungible and tradeable financial instruments. The SEC regulates public securities sales.
The Supreme Court defined a security offering in SEC v. W.J. Howey Co. In its judgment, the court defines a security using four criteria:
- An investment contract's existence
- The formation of a common enterprise
- The issuer's profit promise
- Third-party promotion of the offering
Read original post.
More on Web3 & Crypto
Coinbase
4 years ago
10 Predictions for Web3 and the Cryptoeconomy for 2022
By Surojit Chatterjee, Chief Product Officer
2021 proved to be a breakout year for crypto with BTC price gaining almost 70% yoy, Defi hitting $150B in value locked, and NFTs emerging as a new category. Here’s my view through the crystal ball into 2022 and what it holds for our industry:
1. Eth scalability will improve, but newer L1 chains will see substantial growth — As we welcome the next hundred million users to crypto and Web3, scalability challenges for Eth are likely to grow. I am optimistic about improvements in Eth scalability with the emergence of Eth2 and many L2 rollups. Traction of Solana, Avalanche and other L1 chains shows that we’ll live in a multi-chain world in the future. We’re also going to see newer L1 chains emerge that focus on specific use cases such as gaming or social media.
2. There will be significant usability improvements in L1-L2 bridges — As more L1 networks gain traction and L2s become bigger, our industry will desperately seek improvements in speed and usability of cross-L1 and L1-L2 bridges. We’re likely to see interesting developments in usability of bridges in the coming year.
3. Zero knowledge proof technology will get increased traction — 2021 saw protocols like ZkSync and Starknet beginning to get traction. As L1 chains get clogged with increased usage, ZK-rollup technology will attract both investor and user attention. We’ll see new privacy-centric use cases emerge, including privacy-safe applications, and gaming models that have privacy built into the core. This may also bring in more regulator attention to crypto as KYC/AML could be a real challenge in privacy centric networks.
4. Regulated Defi and emergence of on-chain KYC attestation — Many Defi protocols will embrace regulation and will create separate KYC user pools. Decentralized identity and on-chain KYC attestation services will play key roles in connecting users’ real identity with Defi wallet endpoints. We’ll see more acceptance of ENS type addresses, and new systems from cross chain name resolution will emerge.
5. Institutions will play a much bigger role in Defi participation — Institutions are increasingly interested in participating in Defi. For starters, institutions are attracted to higher than average interest-based returns compared to traditional financial products. Also, cost reduction in providing financial services using Defi opens up interesting opportunities for institutions. However, they are still hesitant to participate in Defi. Institutions want to confirm that they are only transacting with known counterparties that have completed a KYC process. Growth of regulated Defi and on-chain KYC attestation will help institutions gain confidence in Defi.
6. Defi insurance will emerge — As Defi proliferates, it also becomes the target of security hacks. According to London-based firm Elliptic, total value lost by Defi exploits in 2021 totaled over $10B. To protect users from hacks, viable insurance protocols guaranteeing users’ funds against security breaches will emerge in 2022.
7. NFT Based Communities will give material competition to Web 2.0 social networks — NFTs will continue to expand in how they are perceived. We’ll see creator tokens or fan tokens take more of a first class seat. NFTs will become the next evolution of users’ digital identity and passport to the metaverse. Users will come together in small and diverse communities based on types of NFTs they own. User created metaverses will be the future of social networks and will start threatening the advertising driven centralized versions of social networks of today.
8. Brands will start actively participating in the metaverse and NFTs — Many brands are realizing that NFTs are great vehicles for brand marketing and establishing brand loyalty. Coca-Cola, Campbell’s, Dolce & Gabbana and Charmin released NFT collectibles in 2021. Adidas recently launched a new metaverse project with Bored Ape Yacht Club. We’re likely to see more interesting brand marketing initiatives using NFTs. NFTs and the metaverse will become the new Instagram for brands. And just like on Instagram, many brands may start as NFT native. We’ll also see many more celebrities jumping in the bandwagon and using NFTs to enhance their personal brand.
9. Web2 companies will wake up and will try to get into Web3 — We’re already seeing this with Facebook trying to recast itself as a Web3 company. We’re likely to see other big Web2 companies dipping their toes into Web3 and metaverse in 2022. However, many of them are likely to create centralized and closed network versions of the metaverse.
10. Time for DAO 2.0 — We’ll see DAOs become more mature and mainstream. More people will join DAOs, prompting a change in definition of employment — never receiving a formal offer letter, accepting tokens instead of or along with fixed salaries, and working in multiple DAO projects at the same time. DAOs will also confront new challenges in terms of figuring out how to do M&A, run payroll and benefits, and coordinate activities in larger and larger organizations. We’ll see a plethora of tools emerge to help DAOs execute with efficiency. Many DAOs will also figure out how to interact with traditional Web2 companies. We’re likely to see regulators taking more interest in DAOs and make an attempt to educate themselves on how DAOs work.
Thanks to our customers and the ecosystem for an incredible 2021. Looking forward to another year of building the foundations for Web3. Wagmi.
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.
Trent Lapinski
3 years ago
What The Hell Is A Crypto Punk?
We are Crypto Punks, and we are changing your world.
A “Crypto Punk” is a new generation of entrepreneurs who value individual liberty and collective value creation and co-creation through decentralization. While many Crypto Punks were born and raised in a digital world, some of the early pioneers in the crypto space are from the Oregon Trail generation. They were born to an analog world, but grew up simultaneously alongside the birth of home computing, the Internet, and mobile computing.
A Crypto Punk’s world view is not the same as previous generations. By the time most Crypto Punks were born everything from fiat currency, the stock market, pharmaceuticals, the Internet, to advanced operating systems and microprocessing were already present or emerging. Crypto Punks were born into pre-existing conditions and systems of control, not governed by logic or reason but by greed, corporatism, subversion, bureaucracy, censorship, and inefficiency.
All Systems Are Human Made
Crypto Punks understand that all systems were created by people and that previous generations did not have access to information technologies that we have today. This is why Crypto Punks have different values than their parents, and value liberty, decentralization, equality, social justice, and freedom over wealth, money, and power. They understand that the only path forward is to work together to build new and better systems that make the old world order obsolete.
Unlike the original cypher punks and cyber punks, Crypto Punks are a new iteration or evolution of these previous cultures influenced by cryptography, blockchain technology, crypto economics, libertarianism, holographics, democratic socialism, and artificial intelligence. They are tasked with not only undoing the mistakes of previous generations, but also innovating and creating new ways of solving complex problems with advanced technology and solutions.
Where Crypto Punks truly differ is in their understanding that computer systems can exist for more than just engagement and entertainment, but actually improve the human condition by automating bureaucracy and inefficiency by creating more efficient economic incentives and systems.
Crypto Punks Value Transparency and Do Not Trust Flawed, Unequal, and Corrupt Systems
Crypto Punks have a strong distrust for inherently flawed and corrupt systems. This why Crypto Punks value transparency, free speech, privacy, and decentralization. As well as arguably computer systems over human powered systems.
Crypto Punks are the children of the Great Recession, and will never forget the economic corruption that still enslaves younger generations.
Crypto Punks were born to think different, and raised by computers to view reality through an LED looking glass. They will not surrender to the flawed systems of economic wage slavery, inequality, censorship, and subjection. They will literally engineer their own unstoppable financial systems and trade in cryptography over fiat currency merely to prove that belief systems are more powerful than corruption.
Crypto Punks are here to help achieve freedom from world governments, corporations and bankers who monetizine our data to control our lives.
Crypto Punks Decentralize
Despite all the evils of the world today, Crypto Punks know they have the power to create change. This is why Crypto Punks are optimistic about the future despite all the indicators that humanity is destined for failure.
Crypto Punks believe in systems that prioritize people and the planet above profit. Even so, Crypto Punks still believe in capitalistic systems, but only capitalistic systems that incentivize good behaviors that do not violate the common good for the sake of profit.
Cyber Punks Are Co-Creators
We are Crypto Punks, and we will build a better world for all of us. For the true price of creation is not in US dollars, but through working together as equals to replace the unequal and corrupt greedy systems of previous generations.
Where they have failed, Crypto Punks will succeed. Not because we want to, but because we have to. The world we were born into is so corrupt and its systems so flawed and unequal we were never given a choice.
We have to be the change we seek.
We are Crypto Punks.
Either help us, or get out of our way.
Are you a Crypto Punk?
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Michelle Teheux
3 years ago
Get Real, All You Grateful Laid-Off LinkedIn Users
WTF is wrong with you people?
When I was laid off as editor of my town's daily newspaper, I went silent on social media. I knew it was coming and had been quietly removing personal items each day, but the pain was intense.
I posted a day later. I didn't bad-mouth GateHouse Media but expressed my sadness at leaving the newspaper industry, pride in my accomplishments, and hope for success in another industry.
Normal job-loss response.
What do you recognize as abnormal?
The bullshit I’ve been reading from laid-off folks on LinkedIn.
If you're there, you know. Many Twitter or Facebook/Meta employees recently lost their jobs.
Well, many of them did not “lose their job,” actually. They were “impacted by the layoffs” at their former employer. I keep seeing that phrase.
Why don’t they want to actually say it? Why the euphemism?
Many are excited about the opportunities ahead. The jobless deny being sad.
They're ecstatic! They have big plans.
Hope so. Sincerely! Being laid off stinks, especially if, like me, your skills are obsolete. It's worse if, like me, you're too old to start a new career. Ageism exists despite denials.
Nowadays, professionalism seems to demand psychotic levels of fake optimism.
Why? Life is unpredictable. That's indisputable. You shouldn't constantly complain or cry in public, but you also shouldn't pretend everything's great.
It makes you look psychotic, not positive. It's like saying at work:
“I was impacted by the death of my spouse of 20 years this week, and many of you have reached out to me, expressing your sympathy. However, I’m choosing to remember the amazing things we shared. I feel confident that there is another marriage out there for me, and after taking a quiet weekend trip to reset myself, I’ll be out there looking for the next great marital adventure! #staypositive #available #opentolove
Also:
“Now looking for our next #dreamhome after our entire neighborhood was demolished by a wildfire last night. We feel so lucky to have lived near so many amazing and inspirational neighbors, all of whom we will miss as we go on our next housing adventure. The best house for us is yet to come! If you have a great neighborhood you’d recommend, please feel free to reach out and touch base with us! #newhouse #newneighborhood #newlife
Admit it. That’s creepy.
The constant optimism makes me feel sick to my stomach.
Viscerally.
I hate fakes.
Imagine a fake wood grain desk. Wouldn't it be better if the designer accepted that it's plastic and went with that?
Real is better but not always nice. When something isn't nice, you don't have to go into detail, but you also shouldn't pretend it's great.
How to announce your job loss to the world.
Do not pretend to be happy, but don't cry and drink vodka all afternoon.
Say you loved your job, and that you're looking for new opportunities.
Yes, if you'll miss your coworkers. Otherwise, don't badmouth. No bridge-burning!
Please specify the job you want. You may want to pivot.
Alternatively, try this.
You could always flame out.
If you've pushed yourself too far into toxic positivity, you may be ready to burn it all down. If so, make it worthwhile by writing something like this:
Well, I was shitcanned by the losers at #Acme today. That bitch Linda in HR threw me under the bus just because she saw that one of my “friends” tagged me in some beach pics on social media after I called in sick with Covid. The good thing is I will no longer have to watch my ass around that #asspincher Ron in accounting, but I’m sad that I will no longer have a cushy job with high pay or access to the primo office supplies I’ve been sneaking home for the last five years. (Those gel pens were the best!) I am going to be taking some time off to enjoy my unemployment and hammer down shots of Jägermeister but in about five months I’ll be looking for anything easy with high pay and great benefits. Reach out if you can help! #officesupplies #unemploymentrocks #drinkinglikeagirlboss #acmesucks
It beats the fake positivity.
Aaron Dinin, PhD
2 years ago
The Advantages and Disadvantages of Having Investors Sign Your NDA
Startup entrepreneurs assume what risks when pitching?
Last week I signed four NDAs.
Four!
NDA stands for non-disclosure agreement. A legal document given to someone receiving confidential information. By signing, the person pledges not to share the information for a certain time. If they do, they may be in breach of contract and face legal action.
Companies use NDAs to protect trade secrets and confidential internal information from employees and contractors. Appropriate. If you manage a huge, successful firm, you don't want your employees selling their information to your competitors. To be true, business NDAs don't always prevent corporate espionage, but they usually make employees and contractors think twice before sharing.
I understand employee and contractor NDAs, but I wasn't asked to sign one. I counsel entrepreneurs, thus the NDAs I signed last week were from startups that wanted my feedback on their concepts.
I’m not a startup investor. I give startup guidance online. Despite that, four entrepreneurs thought their company ideas were so important they wanted me to sign a generically written legal form they probably acquired from a shady, spam-filled legal templates website before we could chat.
False. One company tried to get me to sign their NDA a few days after our conversation. I gently rejected, but their tenacity encouraged me. I considered sending retroactive NDAs to everyone I've ever talked to about one of my startups in case they establish a successful company based on something I said.
Two of the other three NDAs were from nearly identical companies. Good thing I didn't sign an NDA for the first one, else they may have sued me for talking to the second one as though I control the firms people pitch me.
I wasn't talking to the fourth NDA company. Instead, I received an unsolicited email from someone who wanted comments on their fundraising pitch deck but required me to sign an NDA before sending it.
That's right, before I could read a random Internet stranger's unsolicited pitch deck, I had to sign his NDA, potentially limiting my ability to discuss what was in it.
You should understand. Advisors, mentors, investors, etc. talk to hundreds of businesses each year. They cannot manage all the companies they deal with, thus they cannot risk legal trouble by talking to someone. Well, if I signed NDAs for all the startups I spoke with, half of the 300+ articles I've written on Medium over the past several years could get me sued into the next century because I've undoubtedly addressed topics in my articles that I discussed with them.
The four NDAs I received last week are part of a recent trend of entrepreneurs sending out NDAs before meetings, despite the practical and legal issues. They act like asking someone to sign away their right to talk about all they see and hear in a day is as straightforward as asking for a glass of water.
Given this inflow of NDAs, I wanted to briefly remind entrepreneurs reading this blog about the merits and cons of requesting investors (or others in the startup ecosystem) to sign your NDA.
Benefits of having investors sign your NDA include:
None. Zero. Nothing.
Disadvantages of requesting investor NDAs:
You'll come off as an amateur who has no idea what it takes to launch a successful firm.
Investors won't trust you with their money since you appear to be a complete amateur.
Printing NDAs will be a waste of paper because no genuine entrepreneur will ever sign one.
I apologize for missing any cons. Please leave your remarks.
Leah
3 years ago
The Burnout Recovery Secrets Nobody Is Talking About
What works and what’s just more toxic positivity
Just keep at it; you’ll get it.
I closed the Zoom call and immediately dropped my head. Open tabs included material on inspiration, burnout, and recovery.
I searched everywhere for ways to avoid burnout.
It wasn't that I needed to keep going, change my routine, employ 8D audio playlists, or come up with fresh ideas. I had several ideas and a schedule. I knew what to do.
I wasn't interested. I kept reading, changing my self-care and mental health routines, and writing even though it was tiring.
Since burnout became a psychiatric illness in 2019, thousands have shared their experiences. It's spreading rapidly among writers.
What is the actual key to recovering from burnout?
Every A-list burnout story emphasizes prevention. Other lists provide repackaged self-care tips. More discuss mental health.
It's like the mid-2000s, when pink quotes about bubble baths saturated social media.
The self-care mania cost us all. Self-care is crucial, but utilizing it to address everything didn't work then or now.
How can you recover from burnout?
Time
Are extended breaks actually good for you? Most people need a break every 62 days or so to avoid burnout.
Real-life burnout victims all took breaks. Perhaps not a long hiatus, but breaks nonetheless.
Burnout is slow and gradual. It takes little bits of your motivation and passion at a time. Sometimes it’s so slow that you barely notice or blame it on other things like stress and poor sleep.
Burnout doesn't come overnight; neither will recovery.
I don’t care what anyone else says the cure for burnout is. It has to be time because time is what gave us all burnout in the first place.