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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
Rishi Dean
3 years ago
Coinbase's web3 app
Use popular Ethereum dapps with Coinbase’s new dapp wallet and browser
Tl;dr: This post highlights the ability to access web3 directly from your Coinbase app using our new dapp wallet and browser.
Decentralized autonomous organizations (DAOs) and decentralized finance (DeFi) have gained popularity in the last year (DAOs). The total value locked (TVL) of DeFi investments on the Ethereum blockchain has grown to over $110B USD, while NFTs sales have grown to over $30B USD in the last 12 months (LTM). New innovative real-world applications are emerging every day.
Today, a small group of Coinbase app users can access Ethereum-based dapps. Buying NFTs on Coinbase NFT and OpenSea, trading on Uniswap and Sushiswap, and borrowing and lending on Curve and Compound are examples.
Our new dapp wallet and dapp browser enable you to access and explore web3 directly from your Coinbase app.
Web3 in the Coinbase app
Users can now access dapps without a recovery phrase. This innovative dapp wallet experience uses Multi-Party Computation (MPC) technology to secure your on-chain wallet. This wallet's design allows you and Coinbase to share the 'key.' If you lose access to your device, the key to your dapp wallet is still safe and Coinbase can help recover it.
Set up your new dapp wallet by clicking the "Browser" tab in the Android app's navigation bar. Once set up, the Coinbase app's new dapp browser lets you search, discover, and use Ethereum-based dapps.
Looking forward
We want to enable everyone to seamlessly and safely participate in web3, and today’s launch is another step on that journey. We're rolling out the new dapp wallet and browser in the US on Android first to a small subset of users and plan to expand soon. Stay tuned!
Amelie Carver
3 years ago
Web3 Needs More Writers to Educate Us About It
WRITE FOR THE WEB3
Why web3’s messaging is lost and how crypto winter is growing growth seeds
People interested in crypto, blockchain, and web3 typically read Bitcoin and Ethereum's white papers. It's a good idea. Documents produced for developers and academia aren't always the ideal resource for beginners.
Given the surge of extremely technical material and the number of fly-by-nights, rug pulls, and other scams, it's little wonder mainstream audiences regard the blockchain sector as an expensive sideshow act.
What's the solution?
Web3 needs more than just builders.
After joining TikTok, I followed Amy Suto of SutoScience. Amy switched from TV scriptwriting to IT copywriting years ago. She concentrates on web3 now. Decentralized autonomous organizations (DAOs) are seeking skilled copywriters for web3.
Amy has found that web3's basics are easy to grasp; you don't need technical knowledge. There's a paradigm shift in knowing the basics; be persistent and patient.
Apple is positioning itself as a data privacy advocate, leveraging web3's zero-trust ethos on data ownership.
Finn Lobsien, who writes about web3 copywriting for the Mirror and Twitter, agrees: acronyms and abstractions won't do.
Web3 preached to the choir. Curious newcomers have only found whitepapers and scams when trying to learn why the community loves it. No wonder people resist education and buy-in.
Due to the gender gap in crypto (Crypto Bro is not just a stereotype), it attracts people singing to the choir or trying to cash in on the next big thing.
Last year, the industry was booming, so writing wasn't necessary. Now that the bear market has returned (for everyone, but especially web3), holding readers' attention is a valuable skill.
White papers and the Web3
Why does web3 rely so much on non-growth content?
Businesses must polish and improve their messaging moving into the 2022 recession. The 2021 tech boom provided such a sense of affluence and (unsustainable) growth that no one needed great marketing material. The market found them.
This was especially true for web3 and the first-time crypto believers. Obviously. If they knew which was good.
White papers help. White papers are highly technical texts that walk a reader through a product's details. How Does a White Paper Help Your Business and That White Paper Guy discuss them.
They're meant for knowledgeable readers. Investors and the technical (academic/developer) community read web3 white papers. White papers are used when a product is extremely technical or difficult to assist an informed reader to a conclusion. Web3 uses them most often for ICOs (initial coin offerings).
White papers for web3 education help newcomers learn about the web3 industry's components. It's like sending a first-grader to the Annotated Oxford English Dictionary to learn to read. It's a reference, not a learning tool, for words.
Newcomers can use platforms that teach the basics. These included Coinbase's Crypto Basics tutorials or Cryptochicks Academy, founded by the mother of Ethereum's inventor to get more women utilizing and working in crypto.
Discord and Web3 communities
Discord communities are web3's opposite. Discord communities involve personal communications and group involvement.
Online audience growth begins with community building. User personas prefer 1000 dedicated admirers over 1 million lukewarm followers, and the language is much more easygoing. Discord groups are renowned for phishing scams, compromised wallets, and incorrect information, especially since the crypto crisis.
White papers and Discord increase industry insularity. White papers are complicated, and Discord has a high risk threshold.
Web3 and writing ads
Copywriting is emotional, but white papers are logical. It uses the brain's quick-decision centers. It's meant to make the reader invest immediately.
Not bad. People think sales are sleazy, but they can spot the poor things.
Ethical copywriting helps you reach the correct audience. People who gain a following on Medium are likely to have copywriting training and a readership (or three) in mind when they publish. Tim Denning and Sinem Günel know how to identify a target audience and make them want to learn more.
In a fast-moving market, copywriting is less about long-form content like sales pages or blogs, but many organizations do. Instead, the copy is concise, individualized, and high-value. Tweets, email marketing, and IM apps (Discord, Telegram, Slack to a lesser extent) keep engagement high.
What does web3's messaging lack? As DAOs add stricter copyrighting, narrative and connecting tales seem to be missing.
Web3 is passionate about constructing the next internet. Now, they can connect their passion to a specific audience so newcomers understand why.
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
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Simone Basso
3 years ago
How I set up my teams to be successful
After 10 years of working in scale-ups, I've embraced a few concepts for scaling Tech and Product teams.
First, cross-functionalize teams. Product Managers represent the business, Product Designers the consumer, and Engineers build.
I organize teams of 5-10 individuals, following AWS's two pizza teams guidelines, with a Product Trio guiding each.
If more individuals are needed to reach a goal, I group teams under a Product Trio.
With Engineering being the biggest group, Staff/Principal Engineers often support the Trio on cross-team technical decisions.
Product Managers, Engineering Managers, or Engineers in the team may manage projects (depending on the project or aim), but the trio is collectively responsible for the team's output and outcome.
Once the Product Trio model is created, roles, duties, team ceremonies, and cooperation models must be clarified.
Keep reporting lines by discipline. Line managers are accountable for each individual's advancement, thus it's crucial that they know the work in detail.
Cross-team collaboration becomes more important after 3 teams (15-30 people). Teams can easily diverge in how they write code, run ceremonies, and build products.
Establishing groups of people that are cross-team, but grouped by discipline and skills, sharing and agreeing on working practices becomes critical.
The “Spotify Guild” model has been where I’ve taken a lot of my inspiration from.
Last, establish a taxonomy for communication channels.
In Slack, I create one channel per team and one per guild (and one for me to have discussions with the team leads).
These are just some of the basic principles I follow to organize teams.
A book I particularly like about team types and how they interact with each other is https://teamtopologies.com/.
Alexander Nguyen
3 years ago
How can you bargain for $300,000 at Google?
Don’t give a number
Google pays its software engineers generously. While many of their employees are competent, they disregard a critical skill to maximize their pay.
Negotiation.
If Google employees have never negotiated, they're as helpless as anyone else.
In this piece, I'll reveal a compensation negotiation tip that will set you apart.
The Fallacy of Negotiating
How do you negotiate your salary? “Just give them a number twice the amount you really want”. - Someplace on the internet
Above is typical negotiation advice. If you ask for more than you want, the recruiter may meet you halfway.
It seems logical and great, but here's why you shouldn't follow that advice.
Haitian hostage rescue
In 1977, an official's aunt was kidnapped in Haiti. The kidnappers demanded $150,000 for the aunt's life. It seems reasonable until you realize why kidnappers want $150,000.
FBI detective and negotiator Chris Voss researched why they demanded so much.
“So they could party through the weekend”
When he realized their ransom was for partying, he offered $4,751 and a CD stereo. Criminals freed the aunt.
These thieves gave 31.57x their estimated amount and got a fraction. You shouldn't trust these thieves to negotiate your compensation.
What happened?
Negotiating your offer and Haiti
This narrative teaches you how to negotiate with a large number.
You can and will be talked down.
If a recruiter asks your wage expectation and you offer double, be ready to explain why.
If you can't justify your request, you may be offered less. The recruiter will notice and talk you down.
Reasonably,
a tiny bit more than the present amount you earn
a small premium over an alternative offer
a little less than the role's allotted amount
Real-World Illustration
Recruiter: What’s your expected salary? Candidate: (I know the role is usually $100,000) $200,000 Recruiter: How much are you compensated in your current role? Candidate: $90,000 Recruiter: We’d be excited to offer you $95,000 for your experiences for the role.
So Why Do They Even Ask?
Recruiters ask for a number to negotiate a lower one. Asking yourself limits you.
You'll rarely get more than you asked for, and your request can be lowered.
The takeaway from all of this is to never give an expected compensation.
Tell them you haven't thought about it when you applied.
Davlin Knight
2 years ago
2 pitfalls to stay away from when launching a YouTube channel
You do not want to miss these
Stop! Stop it! Two things to avoid when starting a YouTube channel. Critical. Possible channel-killers Its future revenue.
I'll tell you now, so don't say "I wish I knew."
The Notorious Copyright Allegation
My YouTube channel received a copyright claim before I sold it. This claim was on a one-minute video I thought I'd changed enough to make mine, but the original owner disagreed.
It cost me thousands in ad revenue. Original owner got the profits.
Well, it wasn't your video, you say.
Touché.
I've learned. Sorta
I couldn't stop looking at the video's views. The video got 1,000,000 views without any revenue. I made 4 more similar videos.
If they didn't get copyrighted, I'd be rolling in dough.
You've spent a week editing and are uploading to YouTube. You're thrilled as you stand and stretch your back. You see the video just before publishing.
No way!
The red exclamation point on checks.
Copyright claim!
YouTube lets you publish, but you won't make money.
Sounds fair? Well, it is.
Copyright claims mean you stole someone's work. Song, image, or video clip.
We wouldn't want our content used for money.
The only problem with this is that almost everything belongs to someone else. I doubt some of the biggest creators are sitting down and making their music for their videos. That just seems really excessive when you could make a quick search on YouTube and download a song (I definitely don’t do this because that would be stealing).
So how do you defeat a copyright defense?
Even copyright-free songs on YouTube aren't guaranteed. Some copyrighted songs claim to be free.
Use YouTube's free music library or pay for a subscription to adobe stock, epidemic sound, or artlist.io.
Most of my videos have Nintendo music. Almost all game soundtracks are copyright-free and offer a variety of songs.
Restriction on age
Age restrictions are a must-avoid. A channel dies.
YouTube never suggests age-restricted videos.
Shadow banning means YouTube hides your content from subscribers and non-subscribers.
Keeping your channel family-friendly can help.
I hear you complaining that your channel isn't for kids. I agree. Not everyone has a clean mouth or creates content for minors.
YouTube has changed rapidly in recent years. Focusing on kids. Fewer big creators are using profanity or explicit content in videos. Not YouTube-worthy.
Youtube wants to be family-friendly. A family-friendly movie. It won't promote illegal content. Yes, it allows profanity.
Do I recommend avoiding no-no words in videos? Never. Okay. YouTube's policies are shaky. YouTube uses video content to determine ad suitability.
No joke. If you're serious about becoming a content creator, avoid profanity and inappropriate topics.
If your channel covers 18+ topics, like crime or commentary, censor as much as possible.
YouTube can be like walking on eggshells. You never know what is gonna upset the boss. So play it safe and try to avoid getting on their bad side.
Mr. Beast, Dream, Markplier, Faze Rug, and PewDewPie are popular creators. They maintain it family-friendly while entertaining fans.
You got this.