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Nathan Reiff

Nathan Reiff

3 years ago

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:

  1. An investment of money
  2. n a common enterprise
  3. With the expectation of profit
  4. 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

Miguel Saldana

Miguel Saldana

3 years ago

Crypto Inheritance's Catch-22

Security, privacy, and a strategy!

How to manage digital assets in worst-case scenarios is a perennial crypto concern. Since blockchain and bitcoin technology is very new, this hasn't been a major issue. Many early developers are still around, and many groups created around this technology are young and feel they have a lot of life remaining. This is why inheritance and estate planning in crypto should be handled promptly. As cryptocurrency's intrinsic worth rises, many people in the ecosystem are holding on to assets that might represent generational riches. With that much value, it's crucial to have a plan. Creating a solid plan entails several challenges.

  • the initial hesitation in coming up with a plan

  • The technical obstacles to ensuring the assets' security and privacy

  • the passing of assets from a deceased or incompetent person

  • Legal experts' lack of comprehension and/or understanding of how to handle and treat cryptocurrency.

This article highlights several challenges, a possible web3-native solution, and how to learn more.

The Challenge of Inheritance:

One of the biggest hurdles to inheritance planning is starting the conversation. As humans, we don't like to think about dying. Early adopters will experience crazy gains as cryptocurrencies become more popular. Creating a plan is crucial if you wish to pass on your riches to loved ones. Without a plan, the technical and legal issues I barely mentioned above would erode value by requiring costly legal fees and/or taxes, and you could lose everything if wallets and assets are not distributed appropriately (associated with the private keys). Raising awareness of the consequences of not having a plan should motivate people to make one.

Controlling Change:

Having an inheritance plan for your digital assets is crucial, but managing the guts and bolts poses a new set of difficulties. Privacy and security provided by maintaining your own wallet provide different issues than traditional finances and assets. Traditional finance is centralized (say a stock brokerage firm). You can assign another person to handle the transfer of your assets. In crypto, asset transfer is reimagined. One may suppose future transaction management is doable, but the user must consent, creating an impossible loop.

  • I passed away and must send a transaction to the person I intended to deliver it to.

  • I have to confirm or authorize the transaction, but I'm dead.

In crypto, scheduling a future transaction wouldn't function. To transfer the wallet and its contents, we'd need the private keys and/or seed phrase. Minimizing private key exposure is crucial to protecting your crypto from hackers, social engineering, and phishing. People have lost private keys after utilizing Life Hack-type tactics to secure them. People that break and hide their keys, lose them, or make them unreadable won't help with managing and/or transferring. This will require a derived solution.

Legal Challenges and Implications

Unlike routine cryptocurrency transfers and transactions, local laws may require special considerations. Even in the traditional world, estate/inheritance taxes, how assets will be split, and who executes the will must be considered. Many lawyers aren't crypto-savvy, which complicates the matter. There will be many hoops to jump through to safeguard your crypto and traditional assets and give them to loved ones.

Knowing RUFADAA/UFADAA, depending on your state, is vital for Americans. UFADAA offers executors and trustees access to online accounts (which crypto wallets would fall into). RUFADAA was changed to limit access to the executor to protect assets. RUFADAA outlines how digital assets are administered following death and incapacity in the US.

A Succession Solution

Having a will and talking about who would get what is the first step to having a solution, but using a Dad Mans Switch is a perfect tool for such unforeseen circumstances. As long as the switch's controller has control, nothing happens. Losing control of the switch initiates a state transition.

Subway or railway operations are examples. Modern control systems need the conductor to hold a switch to keep the train going. If they can't, the train stops.

Enter Sarcophagus

Sarcophagus is a decentralized dead man's switch built on Ethereum and Arweave. Sarcophagus allows actors to maintain control of their possessions even while physically unable to do so. Using a programmable dead man's switch and dual encryption, anything can be kept and passed on. This covers assets, secrets, seed phrases, and other use cases to provide authority and control back to the user and release trustworthy services from this work. Sarcophagus is built on a decentralized, transparent open source codebase. Sarcophagus is there if you're unprepared.

forkast

forkast

3 years ago

Three Arrows Capital collapse sends crypto tremors

Three Arrows Capital's Google search volume rose over 5,000%.

Three Arrows Capital, a Singapore-based cryptocurrency hedge fund, filed for Chapter 15 bankruptcy last Friday to protect its U.S. assets from creditors.

  • Three Arrows filed for bankruptcy on July 1 in New York.

  • Three Arrows was ordered liquidated by a British Virgin Islands court last week after defaulting on a $670 million loan from Voyager Digital. Three days later, the Singaporean government reprimanded Three Arrows for spreading misleading information and exceeding asset limits.

  • Three Arrows' troubles began with Terra's collapse in May, after it bought US$200 million worth of Terra's LUNA tokens in February, co-founder Kyle Davies told the Wall Street Journal. Three Arrows has failed to meet multiple margin calls since then, including from BlockFi and Genesis.

  • Three Arrows Capital, founded by Kyle Davies and Su Zhu in 2012, manages $10 billion in crypto assets.

  • Bitcoin's price fell from US$20,600 to below US$19,200 after Three Arrows' bankruptcy petition. According to CoinMarketCap, BTC is now above US$20,000.

What does it mean?

Every action causes an equal and opposite reaction, per Newton's third law. Newtonian physics won't comfort Three Arrows investors, but future investors will thank them for their overconfidence.

Regulators are taking notice of crypto's meteoric rise and subsequent fall. Historically, authorities labeled the industry "high risk" to warn traditional investors against entering it. That attitude is changing. Regulators are moving quickly to regulate crypto to protect investors and prevent broader asset market busts.

The EU has reached a landmark deal that will regulate crypto asset sales and crypto markets across the 27-member bloc. The U.S. is close behind with a similar ruling, and smaller markets are also looking to improve safeguards.

For many, regulation is the only way to ensure the crypto industry survives the current winter.

Olga Kharif

3 years ago

A month after freezing customer withdrawals, Celsius files for bankruptcy.

Alex Mashinsky, CEO of Celsius, speaks at Web Summit 2021 in Lisbon. 

Celsius Network filed for Chapter 11 bankruptcy a month after freezing customer withdrawals, joining other crypto casualties.

Celsius took the step to stabilize its business and restructure for all stakeholders. The filing was done in the Southern District of New York.

The company, which amassed more than $20 billion by offering 18% interest on cryptocurrency deposits, paused withdrawals and other functions in mid-June, citing "extreme market conditions."

As the Fed raises interest rates aggressively, it hurts risk sentiment and squeezes funding costs. Voyager Digital Ltd. filed for Chapter 11 bankruptcy this month, and Three Arrows Capital has called in liquidators.

Celsius called the pause "difficult but necessary." Without the halt, "the acceleration of withdrawals would have allowed certain customers to be paid in full while leaving others to wait for Celsius to harvest value from illiquid or longer-term asset deployment activities," it said.

Celsius declined to comment. CEO Alex Mashinsky said the move will strengthen the company's future.

The company wants to keep operating. It's not requesting permission to allow customer withdrawals right now; Chapter 11 will handle customer claims. The filing estimates assets and liabilities between $1 billion and $10 billion.

Celsius is advised by Kirkland & Ellis, Centerview Partners, and Alvarez & Marsal.

Yield-promises

Celsius promised 18% returns on crypto loans. It lent those coins to institutional investors and participated in decentralized-finance apps.

When TerraUSD (UST) and Luna collapsed in May, Celsius pulled its funds from Terra's Anchor Protocol, which offered 20% returns on UST deposits. Recently, another large holding, staked ETH, or stETH, which is tied to Ether, became illiquid and discounted to Ether.

The lender is one of many crypto companies hurt by risky bets in the bear market. Also, Babel halted withdrawals. Voyager Digital filed for bankruptcy, and crypto hedge fund Three Arrows Capital filed for Chapter 15 bankruptcy.

According to blockchain data and tracker Zapper, Celsius repaid all of its debt in Aave, Compound, and MakerDAO last month.

Celsius charged Symbolic Capital Partners Ltd. 2,000 Ether as collateral for a cash loan on June 13. According to company filings, Symbolic was charged 2,545.25 Ether on June 11.

In July 6 filings, it said it reshuffled its board, appointing two new members and firing others.

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Jano le Roux

Jano le Roux

3 years ago

Quit worrying about Twitter: Elon moves quickly before refining

Elon's rides start rough, but then...

Illustration

Elon Musk has never been so hated.

They don’t get Elon.

  • He began using PayPal in this manner.

  • He began with SpaceX in a similar manner.

  • He began with Tesla in this manner.

Disruptive.

Elon had rocky starts. His creativity requires it. Just like writing a first draft.

His fastest way to find the way is to avoid it.

PayPal's pricey launch

PayPal was a 1999 business flop.

They were considered insane.

Elon and his co-founders had big plans for PayPal. They adopted the popular philosophy of the time, exchanging short-term profit for growth, and pulled off a miracle just before the bubble burst.

PayPal was created as a dollar alternative. Original PayPal software allowed PalmPilot money transfers. Unfortunately, there weren't enough PalmPilot users.

Since everyone had email, the company emailed payments. Costs rose faster than sales.

The startup wanted to get a million subscribers by paying $10 to sign up and $10 for each referral. Elon thought the price was fair because PayPal made money by charging transaction fees. They needed to make money quickly.

A Wall Street Journal article valuing PayPal at $500 million attracted investors. The dot-com bubble burst soon after they rushed to get financing.

Musk and his partners sold PayPal to eBay for $1.5 billion in 2002. Musk's most successful company was PayPal.

SpaceX's start-up error

Elon and his friends bought a reconditioned ICBM in Russia in 2002.

He planned to invest much of his wealth in a stunt to promote NASA and space travel.

Many called Elon crazy.

The goal was to buy a cheap Russian rocket to launch mice or plants to Mars and return them. He thought SpaceX would revive global space interest. After a bad meeting in Moscow, Elon decided to build his own rockets to undercut launch contracts.

Then SpaceX was founded.

Elon’s plan was harder than expected.

Explosions followed explosions.

  • Millions lost on cargo.

  • Millions lost on the rockets.

Investors thought Elon was crazy, but he wasn't.

NASA's biggest competitor became SpaceX. NASA hired SpaceX to handle many of its missions.

Tesla's shaky beginning

Tesla began shakily.

  • Clients detested their roadster.

  • They continued to miss deadlines.

Lotus would handle the car while Tesla focused on the EV component, easing Tesla's entry. The business experienced elegance creep. Modifying specific parts kept the car from getting worse.

Cost overruns, delays, and other factors changed the Elise-like car's appearance. Only 7% of the Tesla Roadster's parts matched its Lotus twin.

Tesla was about to die.

Elon saved the mess as CEO.

He fired 25% of the workforce to reduce costs.

Elon Musk transformed Tesla into the world's most valuable automaker by running it like a startup.

Tesla hasn't spent a dime on advertising. They let the media do the talking by investing in innovation.

Elon sheds. Elon tries. Elon learns. Elon refines.

Twitter doesn't worry me.

The media is shocked. I’m not.

This is just Elon being Elon.

  • Elon makes lean.

  • Elon tries new things.

  • Elon listens to feedback.

  • Elon refines.

Besides Twitter will always be Twitter.

KonstantinDr

KonstantinDr

3 years ago

Early Adopters And the Fifth Reason WHY

Product management wizardry.

Product management

Early adopters buy a product even if it hasn't hit the market or has flaws.

Who are the early adopters?

Early adopters try a new technology or product first. Early adopters are interested in trying or buying new technologies and products before others. They're risk-tolerant and can provide initial cash flow and product reviews. They help a company's new product or technology gain social proof.

Early adopters are most common in the technology industry, but they're in every industry. They don't follow the crowd. They seek innovation and report product flaws before mass production. If the product works well, the first users become loyal customers, and colleagues value their opinion.

What to do with early adopters?

They can be used to collect feedback and initial product promotion, first sales, and product value validation.

How to find early followers?

Start with your immediate environment and target audience. Communicate with them to see if they're interested in your value proposition.

1) Innovators (2.5% of the population) are risk-takers seeking novelty. These people are the first to buy new and trendy items and drive social innovation. However, these people are usually elite;

Early adopters (13.5%) are inclined to accept innovations but are more cautious than innovators; they start using novelties when innovators or famous people do;

3) The early majority (34%) is conservative; they start using new products when many people have mastered them. When the early majority accepted the innovation, it became ingrained in people's minds.

4) Attracting 34% of the population later means the novelty has become a mass-market product. Innovators are using newer products;

5) Laggards (16%) are the most conservative, usually elderly people who use the same products.

Stages of new information acceptance

1. The information is strange and rejected by most. Accepted only by innovators;

2. When early adopters join, more people believe it's not so bad; when a critical mass is reached, the novelty becomes fashionable and most people use it.

3. Fascination with a novelty peaks, then declines; the majority and laggards start using it later; novelty becomes obsolete; innovators master something new.

Problems with early implementation

Early adopter sales have disadvantages.

Higher risk of defects

Selling to first-time users increases the risk of defects. Early adopters are often influential, so this can affect the brand's and its products' long-term perception.

Not what was expected

First-time buyers may be disappointed by the product. Marketing messages can mislead consumers, and if the first users believe the company misrepresented the product, this will affect future sales.

Compatibility issues

Some technological advances cause compatibility issues. Consumers may be disappointed if new technology is incompatible with their electronics.

Method 5 WHY

Let's talk about 5 why, a good tool for finding project problems' root causes. This method is also known as the five why rule, method, or questions.

The 5 why technique came from Toyota's lean manufacturing and helps quickly determine a problem's root cause.

On one, two, and three, you simply do this:

  1. We identify and frame the issue for which a solution is sought.

  2. We frequently ponder this question. The first 2-3 responses are frequently very dull, making you want to give up on this pointless exercise. However, after that, things get interesting. And occasionally it's so fascinating that you question whether you really needed to know.

  3. We consider the final response, ponder it, and choose a course of action.

Always do the 5 whys with the customer or team to have a reasonable discussion and better understand what's happening.

And the “five whys” is a wonderful and simplest tool for introspection. With the accumulated practice, it is used almost automatically in any situation like “I can’t force myself to work, the mood is bad in the morning” or “why did I decide that I have no life without this food processor for 20,000 rubles, which will take half of my rather big kitchen.”

An illustration of the five whys

A simple, but real example from my work practice that I think is very indicative, given the participants' low IT skills.  Anonymized, of course.

Users spend too long looking for tender documents.

Why? Because they must search through many company tender documents.

Why? Because the system can't filter department-specific bids.

Why? Because our contract management system requirements didn't include a department-tender link. That's it, right? We'll add a filter and be happy. but still…

why? Because we based the system's requirements on regulations for working with paper tender documents (when they still had envelopes and autopsies), not electronic ones, and there was no search mechanism.

Why? We didn't consider how our work would change when switching from paper to electronic tenders when drafting the requirements.

Now I know what to do in the future. We add a filter, enter department data, and teach users to use it. This is tactical, but strategically we review the same forgotten requirements to make all the necessary changes in a package, plus we include it in the checklist for the acceptance of final requirements for the future.

Errors when using 5 why

Five whys seems simple, but it can be misused.

Popular ones:

  1. The accusation of everyone and everything is then introduced. After all, the 5 why method focuses on identifying the underlying causes rather than criticizing others. As a result, at the third step, it is not a good idea to conclude that the system is ineffective because users are stupid and that we can therefore do nothing about it.

  2. to fight with all my might so that the outcome would be exactly 5 reasons, neither more nor less. 5 questions is a typical number (it sounds nice, yes), but there could be 3 or 7 in actuality.

  3. Do not capture in-between responses. It is difficult to overestimate the power of the written or printed word, so the result is so-so when the focus is lost. That's it, I suppose. Simple, quick, and brilliant, like other project management tools.

Conclusion

Today we analyzed important study elements:

Early adopters and 5 WHY We've analyzed cases and live examples of how these methods help with product research and growth point identification. Next, consider the HADI cycle.

Thank you for your attention ❤️

Jason Kottke

3 years ago

Lessons on Leadership from the Dancing Guy

This is arguably the best three-minute demonstration I've ever seen of anything. Derek Sivers turns a shaky video of a lone dancing guy at a music festival into a leadership lesson.

A leader must have the courage to stand alone and appear silly. But what he's doing is so straightforward that it's almost instructive. This is critical. You must be simple to follow!

Now comes the first follower, who plays an important role: he publicly demonstrates how to follow. The leader embraces him as an equal, so it's no longer about the leader — it's about them, plural. He's inviting his friends to join him. It takes courage to be the first follower! You stand out and dare to be mocked. Being a first follower is a style of leadership that is underappreciated. The first follower elevates a lone nut to the position of leader. If the first follower is the spark that starts the fire, the leader is the flint.

This link was sent to me by @ottmark, who noted its resemblance to Kurt Vonnegut's three categories of specialists required for revolution.

The rarest of these specialists, he claims, is an actual genius – a person capable generating seemingly wonderful ideas that are not widely known. "A genius working alone is generally dismissed as a crazy," he claims.

The second type of specialist is much easier to find: a highly intellectual person in good standing in his or her community who understands and admires the genius's new ideas and can attest that the genius is not insane. "A person like him working alone can only crave loudly for changes, but fail to say what their shapes should be," Slazinger argues.

Jeff Veen reduced the three personalities to "the inventor, the investor, and the evangelist" on Twitter.