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.

Elnaz Sarraf
3 years ago
Why Bitcoin's Crash Could Be Good for Investors

The crypto market crashed in June 2022. Bitcoin and other cryptocurrencies hit their lowest prices in over a year, causing market panic. Some believe this crash will benefit future investors.
Before I discuss how this crash might help investors, let's examine why it happened. Inflation in the U.S. reached a 30-year high in 2022 after Russia invaded Ukraine. In response, the U.S. Federal Reserve raised interest rates by 0.5%, the most in almost 20 years. This hurts cryptocurrencies like Bitcoin. Higher interest rates make people less likely to invest in volatile assets like crypto, so many investors sold quickly.

The crypto market collapsed. Bitcoin, Ethereum, and Binance dropped 40%. Other cryptos crashed so hard they were delisted from almost every exchange. Bitcoin peaked in April 2022 at $41,000, but after the May interest rate hike, it crashed to $28,000. Bitcoin investors were worried. Even in bad times, this crash is unprecedented.
Bitcoin wasn't "doomed." Before the crash, LUNA was one of the top 5 cryptos by market cap. LUNA was trading around $80 at the start of May 2022, but after the rate hike?
Less than 1 cent. LUNA lost 99.99% of its value in days and was removed from every crypto exchange. Bitcoin's "crash" isn't as devastating when compared to LUNA.
Many people said Bitcoin is "due" for a LUNA-like crash and that the only reason it hasn't crashed is because it's bigger. Still false. If so, Bitcoin should be worth zero by now. We didn't. Instead, Bitcoin reached 28,000, then 29k, 30k, and 31k before falling to 18k. That's not the world's greatest recovery, but it shows Bitcoin's safety.
Bitcoin isn't falling constantly. It fell because of the initial shock of interest rates, but not further. Now, Bitcoin's value is more likely to rise than fall. Bitcoin's low price also attracts investors. They know what prices Bitcoin can reach with enough hype, and they want to capitalize on low prices before it's too late.

Bitcoin's crash was bad, but in a way it wasn't. To understand, consider 2021. In March 2021, Bitcoin surpassed $60k for the first time. Elon Musk's announcement in May that he would no longer support Bitcoin caused a massive crash in the crypto market. In May 2017, Bitcoin's price hit $29,000. Elon Musk's statement isn't worth more than the Fed raising rates. Many expected this big announcement to kill Bitcoin.

Not so. Bitcoin crashed from $58k to $31k in 2021. Bitcoin fell from $41k to $28k in 2022. This crash is smaller. Bitcoin's price held up despite tensions and stress, proving investors still believe in it. What happened after the initial crash in the past?
Bitcoin fell until mid-July. This is also something we’re not seeing today. After a week, Bitcoin began to improve daily. Bitcoin's price rose after mid-July. Bitcoin's price fluctuated throughout the rest of 2021, but it topped $67k in November. Despite no major changes, the peak occurred after the crash. Elon Musk seemed uninterested in crypto and wasn't likely to change his mind soon. What triggered this peak? Nothing, really. What really happened is that people got over the initial statement. They forgot.
Internet users have goldfish-like attention spans. People quickly forgot the crash's cause and were back investing in crypto months later. Despite the market's setbacks, more crypto investors emerged by the end of 2017. Who gained from these peaks? Bitcoin investors who bought low. Bitcoin not only recovered but also doubled its ROI. It was like a movie, and it shows us what to expect from Bitcoin in the coming months.
The current Bitcoin crash isn't as bad as the last one. LUNA is causing market panic. LUNA and Bitcoin are different cryptocurrencies. LUNA crashed because Terra wasn’t able to keep its peg with the USD. Bitcoin is unanchored. It's one of the most decentralized investments available. LUNA's distrust affected crypto prices, including Bitcoin, but it won't last forever.
This is why Bitcoin will likely rebound in the coming months. In 2022, people will get over the rise in interest rates and the crash of LUNA, just as they did with Elon Musk's crypto stance in 2021. When the world moves on to the next big controversy, Bitcoin's price will soar.
Bitcoin may recover for another reason. Like controversy, interest rates fluctuate. The Russian invasion caused this inflation. World markets will stabilize, prices will fall, and interest rates will drop.
Next, lower interest rates could boost Bitcoin's price. Eventually, it will happen. The U.S. economy can't sustain such high interest rates. Investors will put every last dollar into Bitcoin if interest rates fall again.
Bitcoin has proven to be a stable investment. This boosts its investment reputation. Even if Ethereum dethrones Bitcoin as crypto king one day (or any other crypto, for that matter). Bitcoin may stay on top of the crypto ladder for a while. We'll have to wait a few months to see if any of this is true.
This post is a summary. Read the full article here.

Protos
3 years ago
StableGains lost $42M in Anchor Protocol.
StableGains lost millions of dollars in customer funds in Anchor Protocol without telling its users. The Anchor Protocol offered depositors 19-20% APY before its parent ecosystem, Terra LUNA, lost tens of billions of dollars in market capitalization as LUNA fell below $0.01 and its stablecoin (UST) collapsed.
A Terra Research Forum member raised the alarm. StableGains changed its homepage and Terms and Conditions to reflect how it mitigates risk, a tacit admission that it should have done so from the start.
StableGains raised $600,000 in YCombinator's W22 batch. Moonfire, Broom Ventures, and Goodwater Capital invested $3 million more.
StableGains' 15% yield product attracted $42 million in deposits. StableGains kept most of its deposits in Anchor's UST pool earning 19-20% APY, kept one-quarter of the interest as a management fee, and then gave customers their promised 15% APY. It lost almost all customer funds when UST melted down. It changed withdrawal times, hurting customers.
- StableGains said de-pegging was unlikely. According to its website, 1 UST can be bought and sold for $1 of LUNA. LUNA became worthless, and Terra shut down its blockchain.
- It promised to diversify assets across several stablecoins to reduce the risk of one losing its $1 peg, but instead kept almost all of them in one basket.
- StableGains promised withdrawals in three business days, even if a stablecoin needed time to regain its peg. StableGains uses Coinbase for deposits and withdrawals, and customers receive the exact amount of USDC requested.
StableGains scrubs its website squeaky clean
StableGains later edited its website to say it only uses the "most trusted and tested stablecoins" and extended withdrawal times from three days to indefinite time "in extreme cases."
Previously, USDC, TerraUST (UST), and Dai were used (DAI). StableGains changed UST-related website content after the meltdown. It also removed most references to DAI.
Customers noticed a new clause in the Terms and Conditions denying StableGains liability for withdrawal losses. This new clause would have required customers to agree not to sue before withdrawing funds, avoiding a class-action lawsuit.
Customers must sign a waiver to receive a refund.
Erickson Kramer & Osborne law firm has asked StableGains to preserve all internal documents on customer accounts, marketing, and TerraUSD communications. The firm has not yet filed a lawsuit.
Thousands of StableGains customers lost an estimated $42 million.
Celsius Network customers also affected
CEL used Terra LUNA's Anchor Protocol. Celsius users lost money in the crypto market crash and UST meltdown. Many held CEL and LUNA as yielding deposits.
CEO Alex Mashinsky accused "unknown malefactors" of targeting Celsius Network without evidence. Celsius has not publicly investigated this claim as of this article's publication.
CEL fell before UST de-pegged. On June 2, 2021, it reached $8.01. May 19's close: $0.82.
When some Celsius Network users threatened to leave over token losses, Mashinsky replied, "Leave if you don't think I'm sincere and working harder than you, seven days a week."
Celsius Network withdrew $500 million from Anchor Protocol, but smaller holders had trouble.
Read original article here
You might also like
Nate Kostar
3 years ago
# DeaMau5’s PIXELYNX and Beatport Launch Festival NFTs
Pixelynx, a music metaverse gaming platform, has teamed up with Beatport, an online music retailer focusing in electronic music, to establish a Synth Heads non-fungible token (NFT) Collection.
Richie Hawtin, aka Deadmau5, and Joel Zimmerman, nicknamed Pixelynx, have invented a new music metaverse game platform called Pixelynx. In January 2022, they released their first Beatport NFT drop, which saw 3,030 generative NFTs sell out in seconds.
The limited edition Synth Heads NFTs will be released in collaboration with Junction 2, the largest UK techno festival, and having one will grant fans special access tickets and experiences at the London-based festival.
Membership in the Synth Head community, day passes to the Junction 2 Festival 2022, Junction 2 and Beatport apparel, special vinyl releases, and continued access to future ticket drops are just a few of the experiences available.
Five lucky NFT holders will also receive a Golden Ticket, which includes access to a backstage artist bar and tickets to Junction 2's next large-scale London event this summer, in addition to full festival entrance for both days.
The Junction 2 festival will take place at Trent Park in London on June 18th and 19th, and will feature performances from Four Tet, Dixon, Amelie Lens, Robert Hood, and a slew of other artists. Holders of the original Synth Head NFT will be granted admission to the festival's guestlist as well as line-jumping privileges.
The new Synth Heads NFTs collection contain 300 NFTs.
NFTs that provide IRL utility are in high demand.
The benefits of NFT drops related to In Real Life (IRL) utility aren't limited to Beatport and Pixelynx.
Coachella, a well-known music event, recently partnered with cryptocurrency exchange FTX to offer free NFTs to 2022 pass holders. Access to a dedicated entry lane, a meal and beverage pass, and limited-edition merchandise were all included with the NFTs.
Coachella also has its own NFT store on the Solana blockchain, where fans can buy Coachella NFTs and digital treasures that unlock exclusive on-site experiences, physical objects, lifetime festival passes, and "future adventures."
Individual artists and performers have begun taking advantage of NFT technology outside of large music festivals like Coachella.
DJ Tisto has revealed that he would release a VIP NFT for his upcoming "Eagle" collection during the EDC festival in Las Vegas in 2022. This NFT, dubbed "All Access Eagle," gives collectors the best chance to get NFTs from his first drop, as well as unique access to the music "Repeat It."
NFTs are one-of-a-kind digital assets that can be verified, purchased, sold, and traded on blockchains, opening up new possibilities for artists and businesses alike. Time will tell whether Beatport and Pixelynx's Synth Head NFT collection will be successful, but if it's anything like the first release, it's a safe bet.

Will Leitch
2 years ago
Don't treat Elon Musk like Trump.
He’s not the President. Stop treating him like one.
Elon Musk tweeted from Qatar, where he was watching the World Cup Final with Jared Kushner.
Musk's subsequent Tweets were as normal, basic, and bland as anyone's from a World Cup Final: It's depressing to see the world's richest man looking at his phone during a grand ceremony. Rich guy goes to rich guy event didn't seem important.
Before Musk posted his should-I-step-down-at-Twitter poll, CNN ran a long segment asking if it was hypocritical for him to reveal his real-time location after defending his (very dumb) suspension of several journalists for (supposedly) revealing his assassination coordinates by linking to a site that tracks Musks private jet. It was hard to ignore CNN's hypocrisy: It covered Musk as Twitter CEO like President Trump. EVERY TRUMP STORY WAS BASED ON HIM SAYING X, THEN DOING Y. Trump would do something horrific, lie about it, then pretend it was fine, then condemn a political rival who did the same thing, be called hypocritical, and so on. It lasted four years. Exhausting.
It made sense because Trump was the President of the United States. The press's main purpose is to relentlessly cover and question the president.
It's strange to say this out. Twitter isn't America. Elon Musk isn't a president. He maintains a money-losing social media service to harass and mock people he doesn't like. Treating Musk like Trump, as if he should be held accountable like Trump, shows a startling lack of perspective. Some journalists treat Twitter like a country.
The compulsive, desperate way many journalists utilize the site suggests as much. Twitter isn't the town square, despite popular belief. It's a place for obsessives to meet and converse. Journalists say they're breaking news. Their careers depend on it. They can argue it's a public service. Nope. It's a place lonely people go to speak all day. Twitter. So do journalists, Trump, and Musk. Acting as if it has a greater purpose, as if it's impossible to break news without it, or as if the republic is in peril is ludicrous. Only 23% of Americans are on Twitter, while 25% account for 97% of Tweets. I'd think a large portion of that 25% are journalists (or attention addicts) chatting to other journalists. Their loudness makes Twitter seem more important than it is. Nope. It's another stupid website. They were there before Twitter; they will be there after Twitter. It’s just a website. We can all get off it if we want. Most of us aren’t even on it in the first place.
Musk is a website-owner. No world leader. He's not as accountable as Trump was. Musk is cable news's primary character now that Trump isn't (at least for now). Becoming a TV news anchor isn't as significant as being president. Elon Musk isn't as important as we all pretend, and Twitter isn't even close. Twitter is a dumb website, Elon Musk is a rich guy going through a midlife crisis, and cable news is lazy because its leaders thought the entire world was on Twitter and are now freaking out that their playground is being disturbed.
I’ve said before that you need to leave Twitter, now. But even if you’re still on it, we need to stop pretending it matters more than it does. It’s a site for lonely attention addicts, from the man who runs it to the journalists who can’t let go of it. It’s not a town square. It’s not a country. It’s not even a successful website. Let’s stop pretending any of it’s real. It’s not.

Ivona Hirschi
3 years ago
7 LinkedIn Tips That Will Help in Audience Growth
In 8 months, I doubled my audience with them.
LinkedIn's buzz isn't over.
People dream of social proof every day. They want clients, interesting jobs, and field recognition.
LinkedIn coaches will benefit greatly. Sell learning? Probably. Can you use it?
Consistency has been key in my eight-month study of LinkedIn. However, I'll share seven of my tips. 700 to 4500 people followed me.
1. Communication, communication, communication
LinkedIn is a social network. I like to think of it as a cafe. Here, you can share your thoughts, meet friends, and discuss life and work.
Do not treat LinkedIn as if it were a board for your post-its.
More socializing improves relationships. It's about people, like any network.
Consider interactions. Three main areas:
Respond to criticism left on your posts.
Comment on other people's posts
Start and maintain conversations through direct messages.
Engage people. You spend too much time on Facebook if you only read your wall. Keeping in touch and having meaningful conversations helps build your network.
Every day, start a new conversation to make new friends.
2. Stick with those you admire
Interact thoughtfully.
Choose your contacts. Build your tribe is a term. Respectful networking.
I only had past colleagues, family, and friends in my network at the start of this year. Not business-friendly. Since then, I've sought out people I admire or can learn from.
Finding a few will help you. As they connect you to their networks. Friendships can lead to clients.
Don't underestimate network power. Cafe-style. Meet people at each table. But avoid people who sell SEO, web redesign, VAs, mysterious job opportunities, etc.
3. Share eye-catching infographics
Daily infographics flood LinkedIn. Visuals are popular. Use Canva's free templates if you can't draw them.
Last week's:
It's a fun way to visualize your topic.
You can repost and comment on infographics. Involve your network. I prefer making my own because I build my brand around certain designs.
My friend posted infographics consistently for four months and grew his network to 30,000.
If you start, credit the authors. As you steal someone's work.
4. Invite some friends over.
LinkedIn alone can be lonely. Having a few friends who support your work daily will boost your growth.
I was lucky to be invited to a group of networkers. We share knowledge and advice.
Having a few regulars who can discuss your posts is helpful. It's artificial, but it works and engages others.
Consider who you'd support if they were in your shoes.
You can pay for an engagement group, but you risk supporting unrelated people with rubbish posts.
Help each other out.
5. Don't let your feed or algorithm divert you.
LinkedIn's algorithm is magical.
Which time is best? How fast do you need to comment? Which days are best?
Overemphasize algorithms. Consider the user. No need to worry about the best time.
Remember to spend time on LinkedIn actively. Not passively. That is what Facebook is for.
Surely someone would find a LinkedIn recipe. Don't beat the algorithm yet. Consider your audience.
6. The more personal, the better
Personalization isn't limited to selfies. Share your successes and failures.
The more personality you show, the better.
People relate to others, not theories or quotes. Why should they follow you? Everyone posts the same content?
Consider your friends. What's their appeal?
Because they show their work and identity. It's simple. Medium and Linkedin are your platforms. Find out what works.
You can copy others' hooks and structures. You decide how simple to make it, though.
7. Have fun with those who have various post structures.
I like writing, infographics, videos, and carousels. Because you can:
Repurpose your content!
Out of one blog post I make:
Newsletter
Infographics (positive and negative points of view)
Carousel
Personal stories
Listicle
Create less but more variety. Since LinkedIn posts last 24 hours, you can rotate the same topics for weeks without anyone noticing.
Effective!
The final LI snippet to think about
LinkedIn is about consistency. Some say 15 minutes. If you're serious about networking, spend more time there.
The good news is that it is worth it. The bad news is that it takes time.
:max_bytes(150000):strip_icc():gifv():format(webp)/reiff_headshot-5bfc2a60c9e77c00519a70bd.jpg)