Howey Test and Cryptocurrencies: 'Every ICO Is a Security'
What Is the Howey Test?
To determine whether a transaction qualifies as a "investment contract" and thus qualifies as a security, the Howey Test refers to the U.S. Supreme Court cass: the Securities Act of 1933 and the Securities Exchange Act of 1934. According to the Howey Test, an investment contract exists when "money is invested in a common enterprise with a reasonable expectation of profits from others' efforts."
The test applies to any contract, scheme, or transaction. The Howey Test helps investors and project backers understand blockchain and digital currency projects. ICOs and certain cryptocurrencies may be found to be "investment contracts" under the test.
Understanding the Howey Test
The Howey Test comes from the 1946 Supreme Court case SEC v. W.J. Howey Co. The Howey Company sold citrus groves to Florida buyers who leased them back to Howey. The company would maintain the groves and sell the fruit for the owners. Both parties benefited. Most buyers had no farming experience and were not required to farm the land.
The SEC intervened because Howey failed to register the transactions. The court ruled that the leaseback agreements were investment contracts.
This established four criteria for determining an investment contract. Investing contract:
- An investment of money
- n a common enterprise
- With the expectation of profit
- To be derived from the efforts of others
In the case of Howey, the buyers saw the transactions as valuable because others provided the labor and expertise. An income stream was obtained by only investing capital. As a result of the Howey Test, the transaction had to be registered with the SEC.
Howey Test and Cryptocurrencies
Bitcoin is notoriously difficult to categorize. Decentralized, they evade regulation in many ways. Regardless, the SEC is looking into digital assets and determining when their sale qualifies as an investment contract.
The SEC claims that selling digital assets meets the "investment of money" test because fiat money or other digital assets are being exchanged. Like the "common enterprise" test.
Whether a digital asset qualifies as an investment contract depends on whether there is a "expectation of profit from others' efforts."
For example, buyers of digital assets may be relying on others' efforts if they expect the project's backers to build and maintain the digital network, rather than a dispersed community of unaffiliated users. Also, if the project's backers create scarcity by burning tokens, the test is met. Another way the "efforts of others" test is met is if the project's backers continue to act in a managerial role.
These are just a few examples given by the SEC. If a project's success is dependent on ongoing support from backers, the buyer of the digital asset is likely relying on "others' efforts."
Special Considerations
If the SEC determines a cryptocurrency token is a security, many issues arise. It means the SEC can decide whether a token can be sold to US investors and forces the project to register.
In 2017, the SEC ruled that selling DAO tokens for Ether violated federal securities laws. Instead of enforcing securities laws, the SEC issued a warning to the cryptocurrency industry.
Due to the Howey Test, most ICOs today are likely inaccessible to US investors. After a year of ICOs, then-SEC Chair Jay Clayton declared them all securities.
SEC Chairman Gensler Agrees With Predecessor: 'Every ICO Is a Security'
Howey Test FAQs
How Do You Determine If Something Is a Security?
The Howey Test determines whether certain transactions are "investment contracts." Securities are transactions that qualify as "investment contracts" under the Securities Act of 1933 and the Securities Exchange Act of 1934.
The Howey Test looks for a "investment of money in a common enterprise with a reasonable expectation of profits from others' efforts." If so, the Securities Act of 1933 and the Securities Exchange Act of 1934 require disclosure and registration.
Why Is Bitcoin Not a Security?
Former SEC Chair Jay Clayton clarified in June 2018 that bitcoin is not a security: "Cryptocurrencies: Replace the dollar, euro, and yen with bitcoin. That type of currency is not a security," said Clayton.
Bitcoin, which has never sought public funding to develop its technology, fails the SEC's Howey Test. However, according to Clayton, ICO tokens are securities.
A Security Defined by the SEC
In the public and private markets, securities are fungible and tradeable financial instruments. The SEC regulates public securities sales.
The Supreme Court defined a security offering in SEC v. W.J. Howey Co. In its judgment, the court defines a security using four criteria:
- An investment contract's existence
- The formation of a common enterprise
- The issuer's profit promise
- Third-party promotion of the offering
Read original post.
More on Web3 & Crypto

Coinbase
4 years ago
10 Predictions for Web3 and the Cryptoeconomy for 2022
By Surojit Chatterjee, Chief Product Officer
2021 proved to be a breakout year for crypto with BTC price gaining almost 70% yoy, Defi hitting $150B in value locked, and NFTs emerging as a new category. Here’s my view through the crystal ball into 2022 and what it holds for our industry:
1. Eth scalability will improve, but newer L1 chains will see substantial growth — As we welcome the next hundred million users to crypto and Web3, scalability challenges for Eth are likely to grow. I am optimistic about improvements in Eth scalability with the emergence of Eth2 and many L2 rollups. Traction of Solana, Avalanche and other L1 chains shows that we’ll live in a multi-chain world in the future. We’re also going to see newer L1 chains emerge that focus on specific use cases such as gaming or social media.
2. There will be significant usability improvements in L1-L2 bridges — As more L1 networks gain traction and L2s become bigger, our industry will desperately seek improvements in speed and usability of cross-L1 and L1-L2 bridges. We’re likely to see interesting developments in usability of bridges in the coming year.
3. Zero knowledge proof technology will get increased traction — 2021 saw protocols like ZkSync and Starknet beginning to get traction. As L1 chains get clogged with increased usage, ZK-rollup technology will attract both investor and user attention. We’ll see new privacy-centric use cases emerge, including privacy-safe applications, and gaming models that have privacy built into the core. This may also bring in more regulator attention to crypto as KYC/AML could be a real challenge in privacy centric networks.
4. Regulated Defi and emergence of on-chain KYC attestation — Many Defi protocols will embrace regulation and will create separate KYC user pools. Decentralized identity and on-chain KYC attestation services will play key roles in connecting users’ real identity with Defi wallet endpoints. We’ll see more acceptance of ENS type addresses, and new systems from cross chain name resolution will emerge.
5. Institutions will play a much bigger role in Defi participation — Institutions are increasingly interested in participating in Defi. For starters, institutions are attracted to higher than average interest-based returns compared to traditional financial products. Also, cost reduction in providing financial services using Defi opens up interesting opportunities for institutions. However, they are still hesitant to participate in Defi. Institutions want to confirm that they are only transacting with known counterparties that have completed a KYC process. Growth of regulated Defi and on-chain KYC attestation will help institutions gain confidence in Defi.
6. Defi insurance will emerge — As Defi proliferates, it also becomes the target of security hacks. According to London-based firm Elliptic, total value lost by Defi exploits in 2021 totaled over $10B. To protect users from hacks, viable insurance protocols guaranteeing users’ funds against security breaches will emerge in 2022.
7. NFT Based Communities will give material competition to Web 2.0 social networks — NFTs will continue to expand in how they are perceived. We’ll see creator tokens or fan tokens take more of a first class seat. NFTs will become the next evolution of users’ digital identity and passport to the metaverse. Users will come together in small and diverse communities based on types of NFTs they own. User created metaverses will be the future of social networks and will start threatening the advertising driven centralized versions of social networks of today.
8. Brands will start actively participating in the metaverse and NFTs — Many brands are realizing that NFTs are great vehicles for brand marketing and establishing brand loyalty. Coca-Cola, Campbell’s, Dolce & Gabbana and Charmin released NFT collectibles in 2021. Adidas recently launched a new metaverse project with Bored Ape Yacht Club. We’re likely to see more interesting brand marketing initiatives using NFTs. NFTs and the metaverse will become the new Instagram for brands. And just like on Instagram, many brands may start as NFT native. We’ll also see many more celebrities jumping in the bandwagon and using NFTs to enhance their personal brand.
9. Web2 companies will wake up and will try to get into Web3 — We’re already seeing this with Facebook trying to recast itself as a Web3 company. We’re likely to see other big Web2 companies dipping their toes into Web3 and metaverse in 2022. However, many of them are likely to create centralized and closed network versions of the metaverse.
10. Time for DAO 2.0 — We’ll see DAOs become more mature and mainstream. More people will join DAOs, prompting a change in definition of employment — never receiving a formal offer letter, accepting tokens instead of or along with fixed salaries, and working in multiple DAO projects at the same time. DAOs will also confront new challenges in terms of figuring out how to do M&A, run payroll and benefits, and coordinate activities in larger and larger organizations. We’ll see a plethora of tools emerge to help DAOs execute with efficiency. Many DAOs will also figure out how to interact with traditional Web2 companies. We’re likely to see regulators taking more interest in DAOs and make an attempt to educate themselves on how DAOs work.
Thanks to our customers and the ecosystem for an incredible 2021. Looking forward to another year of building the foundations for Web3. Wagmi.

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.

Faisal Khan
2 years ago
4 typical methods of crypto market manipulation
Market fraud
Due to its decentralized and fragmented character, the crypto market has integrity difficulties.
Cryptocurrencies are an immature sector, therefore market manipulation becomes a bigger issue. Many research have attempted to uncover these abuses. CryptoCompare's newest one highlights some of the industry's most typical scams.
Why are these concerns so common in the crypto market? First, even the largest centralized exchanges remain unregulated due to industry immaturity. A low-liquidity market segment makes an attack more harmful. Finally, market surveillance solutions not implemented reduce transparency.
In CryptoCompare's latest exchange benchmark, 62.4% of assessed exchanges had a market surveillance system, although only 18.1% utilised an external solution. To address market integrity, this measure must improve dramatically. Before discussing the report's malpractices, note that this is not a full list of attacks and hacks.
Clean Trading
An investor buys and sells concurrently to increase the asset's price. Centralized and decentralized exchanges show this misconduct. 23 exchanges have a volume-volatility correlation < 0.1 during the previous 100 days, according to CryptoCompares. In August 2022, Exchange A reported $2.5 trillion in artificial and/or erroneous volume, up from $33.8 billion the month before.
Spoofing
Criminals create and cancel fake orders before they can be filled. Since manipulators can hide in larger trading volumes, larger exchanges have more spoofing. A trader placed a 20.8 BTC ask order at $19,036 when BTC was trading at $19,043. BTC declined 0.13% to $19,018 in a minute. At 18:48, the trader canceled the ask order without filling it.
Front-Running
Most cryptocurrency front-running involves inside trading. Traditional stock markets forbid this. Since most digital asset information is public, this is harder. Retailers could utilize bots to front-run.
CryptoCompare found digital wallets of people who traded like insiders on exchange listings. The figure below shows excess cumulative anomalous returns (CAR) before a coin listing on an exchange.
Finally, LAYERING is a sequence of spoofs in which successive orders are put along a ladder of greater (layering offers) or lower (layering bids) values. The paper concludes with recommendations to mitigate market manipulation. Exchange data transparency, market surveillance, and regulatory oversight could reduce manipulative tactics.
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Caspar Mahoney
2 years ago
Changing Your Mindset From a Project to a Product
Product game mindsets? How do these vary from Project mindset?
1950s spawned the Iron Triangle. Project people everywhere know and live by it. In stakeholder meetings, it is used to stretch the timeframe, request additional money, or reduce scope.
Quality was added to this triangle as things matured.
Quality was intended to be transformative, but none of these principles addressed why we conduct projects.
Value and benefits are key.
Product value is quantified by ROI, revenue, profit, savings, or other metrics. For me, every project or product delivery is about value.
Most project managers, especially those schooled 5-10 years or more ago (thousands working in huge corporations worldwide), understand the world in terms of the iron triangle. What does that imply? They worry about:
a) enough time to get the thing done.
b) have enough resources (budget) to get the thing done.
c) have enough scope to fit within (a) and (b) >> note, they never have too little scope, not that I have ever seen! although, theoretically, this could happen.
Boom—iron triangle.
To make the triangle function, project managers will utilize formal governance (Steering) to move those things. Increase money, scope, or both if time is short. Lacking funds? Increase time, scope, or both.
In current product development, shifting each item considerably may not yield value/benefit.
Even terrible. This approach will fail because it deprioritizes Value/Benefit by focusing the major stakeholders (Steering participants) and delivery team(s) on Time, Scope, and Budget restrictions.
Pre-agile, this problem was terrible. IT projects failed wildly. History is here.
Value, or benefit, is central to the product method. Product managers spend most of their time planning value-delivery paths.
Product people consider risk, schedules, scope, and budget, but value comes first. Let me illustrate.
Imagine managing internal products in an enterprise. Your core customer team needs a rapid text record of a chat to fix a problem. The consumer wants a feature/features added to a product you're producing because they think it's the greatest spot.
Project-minded, I may say;
Ok, I have budget as this is an existing project, due to run for a year. This is a new requirement to add to the features we’re already building. I think I can keep the deadline, and include this scope, as it sounds related to the feature set we’re building to give the desired result”.
This attitude repeats Scope, Time, and Budget.
Since it meets those standards, a project manager will likely approve it. If they have a backlog, they may add it and start specking it out assuming it will be built.
Instead, think like a product;
What problem does this feature idea solve? Is that problem relevant to the product I am building? Can that problem be solved quicker/better via another route ? Is it the most valuable problem to solve now? Is the problem space aligned to our current or future strategy? or do I need to alter/update the strategy?
A product mindset allows you to focus on timing, resource/cost, feasibility, feature detail, and so on after answering the aforementioned questions.
The above oversimplifies because
Leadership in discovery
Project managers are facilitators of ideas. This is as far as they normally go in the ‘idea’ space.
Business Requirements collection in classic project delivery requires extensive upfront documentation.
Agile project delivery analyzes requirements iteratively.
However, the project manager is a facilitator/planner first and foremost, therefore topic knowledge is not expected.
I mean business domain, not technical domain (to confuse matters, it is true that in some instances, it can be both technical and business domains that are important for a single individual to master).
Product managers are domain experts. They will become one if they are training/new.
They lead discovery.
Product Manager-led discovery is much more than requirements gathering.
Requirements gathering involves a Business Analyst interviewing people and documenting their requests.
The project manager calculates what fits and what doesn't using their Iron Triangle (presumably in their head) and reports back to Steering.
If this requirements-gathering exercise failed to identify requirements, what would a project manager do? or bewildered by project requirements and scope?
They would tell Steering they need a Business SME or Business Lead assigning or more of their time.
Product discovery requires the Product Manager's subject knowledge and a new mindset.
How should a Product Manager handle confusing requirements?
Product Managers handle these challenges with their talents and tools. They use their own knowledge to fill in ambiguity, but they have the discipline to validate those assumptions.
To define the problem, they may perform qualitative or quantitative primary research.
They might discuss with UX and Engineering on a whiteboard and test assumptions or hypotheses.
Do Product Managers escalate confusing requirements to Steering/Senior leaders? They would fix that themselves.
Product managers raise unclear strategy and outcomes to senior stakeholders. Open talks, soft skills, and data help them do this. They rarely raise requirements since they have their own means of handling them without top stakeholder participation.
Discovery is greenfield, exploratory, research-based, and needs higher-order stakeholder management, user research, and UX expertise.
Product Managers also aid discovery. They lead discovery. They will not leave customer/user engagement to a Business Analyst. Administratively, a business analyst could aid. In fact, many product organizations discourage business analysts (rely on PM, UX, and engineer involvement with end-users instead).
The Product Manager must drive user interaction, research, ideation, and problem analysis, therefore a Product professional must be skilled and confident.
Creating vs. receiving and having an entrepreneurial attitude
Product novices and project managers focus on details rather than the big picture. Project managers prefer spreadsheets to strategy whiteboards and vision statements.
These folks ask their manager or senior stakeholders, "What should we do?"
They then elaborate (in Jira, in XLS, in Confluence or whatever).
They want that plan populated fast because it reduces uncertainty about what's going on and who's supposed to do what.
Skilled Product Managers don't only ask folks Should we?
They're suggesting this, or worse, Senior stakeholders, here are some options. After asking and researching, they determine what value this product adds, what problems it solves, and what behavior it changes.
Therefore, to move into Product, you need to broaden your view and have courage in your ability to discover ideas, find insightful pieces of information, and collate them to form a valuable plan of action. You are constantly defining RoI and building Business Cases, so much so that you no longer create documents called Business Cases, it is simply ingrained in your work through metrics, intelligence, and insights.
Product Management is not a free lunch.
Plateless.
Plates and food must be prepared.
In conclusion, Product Managers must make at least three mentality shifts:
You put value first in all things. Time, money, and scope are not as important as knowing what is valuable.
You have faith in the field and have the ability to direct the search. YYou facilitate, but you don’t just facilitate. You wouldn't want to limit your domain expertise in that manner.
You develop concepts, strategies, and vision. You are not a waiter or an inbox where other people can post suggestions; you don't merely ask folks for opinion and record it. However, you excel at giving things that aren't clearly spoken or written down physical form.

Greg Satell
3 years ago
Focus: The Deadly Strategic Idea You've Never Heard Of (But Definitely Need To Know!
Steve Jobs' initial mission at Apple in 1997 was to destroy. He killed the Newton PDA and Macintosh clones. Apple stopped trying to please everyone under Jobs.
Afterward, there were few highly targeted moves. First, the pink iMac. Modest success. The iPod, iPhone, and iPad made Apple the world's most valuable firm. Each maneuver changed the company's center of gravity and won.
That's the idea behind Schwerpunkt, a German military term meaning "focus." Jobs didn't need to win everywhere, just where it mattered, so he focused Apple's resources on a few key goods. Finding your Schwerpunkt is more important than charts and analysis for excellent strategy.
Comparison of Relative Strength and Relative Weakness
The iPod, Apple's first major hit after Jobs' return, didn't damage Microsoft and the PC, but instead focused Apple's emphasis on a fledgling, fragmented market that generated "sucky" products. Apple couldn't have taken on the computer titans at this stage, yet it beat them.
The move into music players used Apple's particular capabilities, especially its ability to build simple, easy-to-use interfaces. Jobs' charisma and stature, along his understanding of intellectual property rights from Pixar, helped him build up iTunes store, which was a quagmire at the time.
In Good Strategy | Bad Strategy, management researcher Richard Rumelt argues that good strategy uses relative strength to counter relative weakness. To discover your main point, determine your abilities and where to effectively use them.
Steve Jobs did that at Apple. Microsoft and Dell, who controlled the computer sector at the time, couldn't enter the music player business. Both sought to produce iPod competitors but failed. Apple's iPod was nobody else's focus.
Finding The Center of Attention
In a military engagement, leaders decide where to focus their efforts by assessing commanders intent, the situation on the ground, the topography, and the enemy's posture on that terrain. Officers spend their careers learning about schwerpunkt.
Business executives must assess internal strengths including personnel, technology, and information, market context, competitive environment, and external partner ecosystems. Steve Jobs was a master at analyzing forces when he returned to Apple.
He believed Apple could integrate technology and design for the iPod and that the digital music player industry sucked. By analyzing competitors' products, he was convinced he could produce a smash by putting 1000 tunes in my pocket.
The only difficulty was there wasn't the necessary technology. External ecosystems were needed. On a trip to Japan to meet with suppliers, a Toshiba engineer claimed the company had produced a tiny memory drive approximately the size of a silver dollar.
Jobs knew the memory drive was his focus. He wrote a $10 million cheque and acquired exclusive technical rights. For a time, none of his competitors would be able to recreate his iPod with the 1000 songs in my pocket.
How to Enter the OODA Loop
John Boyd invented the OODA loop as a pilot to better his own decision-making. First OBSERVE your surroundings, then ORIENT that information using previous knowledge and experiences. Then you DECIDE and ACT, which changes the circumstance you must observe, orient, decide, and act on.
Steve Jobs used the OODA loop to decide to give Toshiba $10 million for a technology it had no use for. He compared the new information with earlier observations about the digital music market.
Then something much more interesting happened. The iPod was an instant hit, changing competition. Other computer businesses that competed in laptops, desktops, and servers created digital music players. Microsoft's Zune came out in 2006, Dell's Digital Jukebox in 2004. Both flopped.
By then, Apple was poised to unveil the iPhone, which would cause its competitors to Observe, Orient, Decide, and Act. Boyd named this OODA Loop infiltration. They couldn't gain the initiative by constantly reacting to Apple.
Microsoft and Dell were titans back then, but it's hard to recall. Apple went from near bankruptcy to crushing its competition via Schwerpunkt.
Rather than a destination, it is a journey
Trying to win everywhere is a strategic blunder. Win significant fights, not trivial skirmishes. Identifying a focal point to direct resources and efforts is the essence of Schwerpunkt.
When Steve Jobs returned to Apple, PC firms were competing, but he focused on digital music players, and the iPod made Apple a player. He launched the iPhone when his competitors were still reacting. When Steve Jobs said, "One more thing," at the end of a product presentation, he had a new focus.
Schwerpunkt isn't static; it's dynamic. Jobs' ability to observe, refocus, and modify the competitive backdrop allowed Apple to innovate consistently. His strategy was tailored to Apple's capabilities, customers, and ecosystem. Microsoft or Dell, better suited for the enterprise sector, couldn't succeed with a comparable approach.
There is no optimal strategy, only ones suited to a given environment, when relative strength might be used against relative weakness. Discovering the center of gravity where you can break through is more of a journey than a destination; it will become evident after you reach.
Sam Hickmann
3 years ago
The Jordan 6 Rings Reintroduce Classic Bulls
The Jordan 6 Rings return in Bulls colors, a deviation from previous releases. The signature red color is used on the midsole and heel, as well as the chenille patch and pull tab. The rest of the latter fixture is black, matching the outsole and adjacent Jumpman logos. Finally, white completes the look, from the leather mudguard to the lace unit. Here's a closer look at the Jordan 6 Rings. Sizes should be available soon on Nike.com and select retailers. Also, official photos of the Air Jordan 1 Denim have surfaced.
Jordan 6 Rings
Release Date: 2022
Color: N/A
Mens: $130
Style Code: 322992-126
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