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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
OnChain Wizard
3 years ago
How to make a >800 million dollars in crypto attacking the once 3rd largest stablecoin, Soros style
Everyone is talking about the $UST attack right now, including Janet Yellen. But no one is talking about how much money the attacker made (or how brilliant it was). Lets dig in.
Our story starts in late March, when the Luna Foundation Guard (or LFG) starts buying BTC to help back $UST. LFG started accumulating BTC on 3/22, and by March 26th had a $1bn+ BTC position. This is leg #1 that made this trade (or attack) brilliant.
The second leg comes in the form of the 4pool Frax announcement for $UST on April 1st. This added the second leg needed to help execute the strategy in a capital efficient way (liquidity will be lower and then the attack is on).
We don't know when the attacker borrowed 100k BTC to start the position, other than that it was sold into Kwon's buying (still speculation). LFG bought 15k BTC between March 27th and April 11th, so lets just take the average price between these dates ($42k).
So you have a ~$4.2bn short position built. Over the same time, the attacker builds a $1bn OTC position in $UST. The stage is now set to create a run on the bank and get paid on your BTC short. In anticipation of the 4pool, LFG initially removes $150mm from 3pool liquidity.
The liquidity was pulled on 5/8 and then the attacker uses $350mm of UST to drain curve liquidity (and LFG pulls another $100mm of liquidity).
But this only starts the de-pegging (down to 0.972 at the lows). LFG begins selling $BTC to defend the peg, causing downward pressure on BTC while the run on $UST was just getting started.
With the Curve liquidity drained, the attacker used the remainder of their $1b OTC $UST position ($650mm or so) to start offloading on Binance. As withdrawals from Anchor turned from concern into panic, this caused a real de-peg as people fled for the exits
So LFG is selling $BTC to restore the peg while the attacker is selling $UST on Binance. Eventually the chain gets congested and the CEXs suspend withdrawals of $UST, fueling the bank run panic. $UST de-pegs to 60c at the bottom, while $BTC bleeds out.
The crypto community panics as they wonder how much $BTC will be sold to keep the peg. There are liquidations across the board and LUNA pukes because of its redemption mechanism (the attacker very well could have shorted LUNA as well). BTC fell 25% from $42k on 4/11 to $31.3k
So how much did our attacker make? There aren't details on where they covered obviously, but if they are able to cover (or buy back) the entire position at ~$32k, that means they made $952mm on the short.
On the $350mm of $UST curve dumps I don't think they took much of a loss, lets assume 3% or just $11m. And lets assume that all the Binance dumps were done at 80c, thats another $125mm cost of doing business. For a grand total profit of $815mm (bf borrow cost).
BTC was the perfect playground for the trade, as the liquidity was there to pull it off. While having LFG involved in BTC, and foreseeing they would sell to keep the peg (and prevent LUNA from dying) was the kicker.
Lastly, the liquidity being low on 3pool in advance of 4pool allowed the attacker to drain it with only $350mm, causing the broader panic in both BTC and $UST. Any shorts on LUNA would've added a lot of P&L here as well, with it falling -65% since 5/7.
And for the reply guys, yes I know a lot of this involves some speculation & assumptions. But a lot of money was made here either way, and I thought it would be cool to dive into how they did it.
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.
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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Sylvain Saurel
3 years ago
A student trader from the United States made $110 million in one month and rose to prominence on Wall Street.
Genius or lucky?
From the title, you might think I'm selling advertising for a financial influencer, a dubious trading site, or a training organization to attract clients. I'm suspicious. Better safe than sorry.
But not here.
Jake Freeman, 20, made $110 million in a month, according to the Financial Times. At 18, he ran for president. He made his name in markets, not politics. Two years later, he's Wall Street's prince. Interview requests flood the prodigy.
Jake Freeman bought 5 million Bed Bath & Beyond Group shares for $5.5 in July 2022 and sold them for $27 a month later. He thought the stock might double. Since speculation died down, he sold well. The stock fell 40.5% to 11 dollars on Friday, 19 August 2022. On August 22, 2022, it fell 16% to $9.
Smallholders have been buying the stock for weeks and will lose heavily if it falls further. Bed Bath & Beyond is the second most popular stock after Foot Locker, ahead of GameStop and Apple.
Jake Freeman earned $110 million thanks to a significant stock market flurry.
Online broker customers aren't the only ones with jitters. By June 2022, Ken Griffin's Citadel and Stephen Mandel's Lone Pine Capital held nearly a third of the company's capital. Did big managers sell before the stock plummeted?
Recent stock movements (derivatives) and rumors could prompt a SEC investigation.
Jake Freeman wrote to the board of directors after his investment to call for a turnaround, given the company's persistent problems and short sellers. The bathroom and kitchen products distribution group's stock soared in July 2022 due to renewed buying by private speculators, who made it one of their meme stocks with AMC and GameStop.
Second-quarter 2022 results and financial health worsened. He didn't celebrate his miraculous operation in a nightclub. He told a British newspaper, "I'm shocked." His parents dined in New York. He returned to Los Angeles to study math and economics.
Jake Freeman founded Freeman Capital Management with his savings and $25 million from family, friends, and acquaintances. They are the ones who are entitled to the $110 million he raised in one month. Will his investors pocket and withdraw all or part of their profits or will they trust the young prodigy for new stunts on Wall Street?
His operation should attract new clients. Well-known hedge funds may hire him.
Jake Freeman didn't listen to gurus or former traders. At 17, he interned at a quantitative finance and derivatives hedge fund, Volaris. At 13, he began investing with his pharmaceutical executive uncle. All countries have increased their Google searches for the young trader in the last week.
Naturally, his success has inspired resentment.
His success stirs jealousy, and he's attacked on social media. On Reddit, people who lost money on Bed Bath & Beyond, Jake Freeman's fortune, are mourning.
Several conspiracy theories circulate about him, including that he doesn't exist or is working for a Taiwanese amusement park.
If all 20 million American students had the same trading skills, they would have generated $1.46 trillion. Jake Freeman is unique. Apprentice traders' careers are often short, disillusioning, and tragic.
Two years ago, 20-year-old Robinhood client Alexander Kearns committed suicide after losing $750,000 trading options. Great traders start young. Michael Platt of BlueCrest invested in British stocks at age 12 under his grandmother's supervision and made a £30,000 fortune. Paul Tudor Jones started trading before he turned 18 with his uncle. Warren Buffett, at age 10, was discussing investments with Goldman Sachs' head. Oracle of Omaha tells all.
Cody Collins
2 years ago
The direction of the economy is as follows.
What quarterly bank earnings reveal
Big banks know the economy best. Unless we’re talking about a housing crisis in 2007…
Banks are crucial to the U.S. economy. The Fed, communities, and investments exchange money.
An economy depends on money flow. Banks' views on the economy can affect their decision-making.
Most large banks released quarterly earnings and forward guidance last week. Others were pessimistic about the future.
What Makes Banks Confident
Bank of America's profit decreased 30% year-over-year, but they're optimistic about the economy. Comparatively, they're bullish.
Who banks serve affects what they see. Bank of America supports customers.
They think consumers' future is bright. They believe this for many reasons.
The average customer has decent credit, unless the system is flawed. Bank of America's new credit card and mortgage borrowers averaged 771. New-car loan and home equity borrower averages were 791 and 797.
2008's housing crisis affected people with scores below 620.
Bank of America and the economy benefit from a robust consumer. Major problems can be avoided if individuals maintain spending.
Reasons Other Banks Are Less Confident
Spending requires income. Many companies, mostly in the computer industry, have announced they will slow or freeze hiring. Layoffs are frequently an indication of poor times ahead.
BOA is positive, but investment banks are bearish.
Jamie Dimon, CEO of JPMorgan, outlined various difficulties our economy could confront.
But geopolitical tension, high inflation, waning consumer confidence, the uncertainty about how high rates have to go and the never-before-seen quantitative tightening and their effects on global liquidity, combined with the war in Ukraine and its harmful effect on global energy and food prices are very likely to have negative consequences on the global economy sometime down the road.
That's more headwinds than tailwinds.
JPMorgan, which helps with mergers and IPOs, is less enthusiastic due to these concerns. Incoming headwinds signal drying liquidity, they say. Less business will be done.
Final Reflections
I don't think we're done. Yes, stocks are up 10% from a month ago. It's a long way from old highs.
I don't think the stock market is a strong economic indicator.
Many executives foresee a 2023 recession. According to the traditional definition, we may be in a recession when Q2 GDP statistics are released next week.
Regardless of criteria, I predict the economy will have a terrible year.
Weekly layoffs are announced. Inflation persists. Will prices return to 2020 levels if inflation cools? Perhaps. Still expensive energy. Ukraine's war has global repercussions.
I predict BOA's next quarter earnings won't be as bullish about the consumer's strength.
Niharikaa Kaur Sodhi
3 years ago
The Only Paid Resources I Turn to as a Solopreneur
4 Pricey Tools That Are Valuable
I pay based on ROI (return on investment).
If a $20/month tool or $500 online course doubles my return, I'm in.
Investing helps me build wealth.
Canva Pro
I initially refused to pay.
My course content needed updating a few months ago. My Google Docs text looked cleaner and more professional in Canva.
I've used it to:
product cover pages
eBook covers
Product page infographics
See my Google Sheets vs. Canva product page graph.
Google Sheets vs Canva
Yesterday, I used it to make a LinkedIn video thumbnail. It took less than 5 minutes and improved my video.
In 30 hours, the video had 39,000 views.
Here's more.
HypeFury
Hypefury rocks!
It builds my brand as I sleep. What else?
Because I'm traveling this weekend, I planned tweets for 10 days. It took me 80 minutes.
So while I travel or am absent, my content mill keeps producing.
Also I like:
I can reach hundreds of people thanks to auto-DMs. I utilize it to advertise freebies; for instance, leave an emoji remark to receive my checklist. And they automatically receive a message in their DM.
Scheduled Retweets: By appearing in a different time zone, they give my tweet a second chance.
It helps me save time and expand my following, so that's my favorite part.
It’s also super neat:
Zoom Pro
My course involves weekly and monthly calls for alumni.
Google Meet isn't great for group calls. The interface isn't great.
Zoom Pro is expensive, and the monthly payments suck, but it's necessary.
It gives my students a smooth experience.
Previously, we'd do 40-minute meetings and then reconvene.
Zoom's free edition limits group calls to 40 minutes.
This wouldn't be a good online course if I paid hundreds of dollars.
So I felt obligated to help.
YouTube Premium
My laptop has an ad blocker.
I bought an iPad recently.
When you're self-employed and work from home, the line between the two blurs. My bed is only 5 steps away!
When I read or watched videos on my laptop, I'd slide into work mode. Only option was to view on phone, which is awkward.
YouTube premium handles it. No more advertisements and I can listen on the move.
3 Expensive Tools That Aren't Valuable
Marketing strategies are sometimes aimed to make you feel you need 38474 cool features when you don’t.
Certain tools are useless.
I found it useless.
Depending on your needs. As a writer and creator, I get no return.
They could for other jobs.
Shield Analytics
It tracks LinkedIn stats, like:
follower growth
trend chart for impressions
Engagement, views, and comment stats for posts
and much more.
Middle-tier creator costs $12/month.
I got a 25% off coupon but canceled my free trial before writing this. It's not worth the discount.
Why?
LinkedIn provides free analytics. See:
Not thorough and won't show top posts.
I don't need to see my top posts because I love experimenting with writing.
Slack Premium
Slack was my classroom. Slack provided me a premium trial during the prior cohort.
I skipped it.
Sure, voice notes are better than a big paragraph. I didn't require pro features.
Marketing methods sometimes make you think you need 38474 amazing features. Don’t fall for it.
Calendly Pro
This may be worth it if you get many calls.
I avoid calls. During my 9-5, I had too many pointless calls.
I don't need:
ability to schedule calls for 15, 30, or 60 minutes: I just distribute each link separately.
I have a Gumroad consultation page with a payment option.
follow-up emails: I hardly ever make calls, so
I just use one calendar, therefore I link to various calendars.
I'll admit, the integrations are cool. Not for me.
If you're a coach or consultant, the features may be helpful. Or book meetings.
Conclusion
Investing is spending to make money.
Use my technique — put money in tools that help you make money. This separates it from being an investment instead of an expense.
Try free versions of these tools before buying them since everyone else is.