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

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
Alex Bentley
3 years ago
Why Bill Gates thinks Bitcoin, crypto, and NFTs are foolish
Microsoft co-founder Bill Gates assesses digital assets while the bull is caged.

Bill Gates is well-respected.
Reasonably. He co-founded and led Microsoft during its 1980s and 1990s revolution.
After leaving Microsoft, Bill Gates pursued other interests. He and his wife founded one of the world's largest philanthropic organizations, Bill & Melinda Gates Foundation. He also supports immunizations, population control, and other global health programs.
When Gates criticized Bitcoin, cryptocurrencies, and NFTs, it made news.
Bill Gates said at the 58th Munich Security Conference...
“You have an asset class that’s 100% based on some sort of greater fool theory that somebody’s going to pay more for it than I do.”
Gates means digital assets. Like many bitcoin critics, he says digital coins and tokens are speculative.
And he's not alone. Financial experts have dubbed Bitcoin and other digital assets a "bubble" for a decade.
Gates also made fun of Bored Ape Yacht Club and NFTs, saying, "Obviously pricey digital photographs of monkeys will help the world."
Why does Bill Gates dislike digital assets?
According to Gates' latest comments, Bitcoin, cryptos, and NFTs aren't good ways to hold value.
Bill Gates is a better investor than Elon Musk.
“I’m used to asset classes, like a farm where they have output, or like a company where they make products,” Gates said.
The Guardian claimed in April 2021 that Bill and Melinda Gates owned the most U.S. farms. Over 242,000 acres of farmland.
The Gates couple has enough farmland to cover Hong Kong.

Bill Gates is a classic investor. He wants companies with an excellent track record, strong fundamentals, and good management. Or tangible assets like land and property.
Gates prefers the "old economy" over the "new economy"
Gates' criticism of Bitcoin and cryptocurrency ventures isn't surprising. These digital assets lack all of Gates's investing criteria.
Volatile digital assets include Bitcoin. Their costs might change dramatically in a day. Volatility scares risk-averse investors like Gates.
Gates has a stake in the old financial system. As Microsoft's co-founder, Gates helped develop a dominant tech company.
Because of his business, he's one of the world's richest men.
Bill Gates is invested in protecting the current paradigm.
He won't invest in anything that could destroy the global economy.
When Gates criticizes Bitcoin, cryptocurrencies, and NFTs, he's suggesting they're a hoax. These soapbox speeches are one way he protects his interests.
Digital assets aren't a bad investment, though. Many think they're the future.
Changpeng Zhao and Brian Armstrong are two digital asset billionaires. Two crypto exchange CEOs. Binance/Coinbase.
Digital asset revolution won't end soon.
If you disagree with Bill Gates and plan to invest in Bitcoin, cryptocurrencies, or NFTs, do your own research and understand the risks.
But don’t take Bill Gates’ word for it.
He’s just an old rich guy with a lot of farmland.
He has a lot to lose if Bitcoin and other digital assets gain global popularity.
This post is a summary. Read the full article here.
Scott Hickmann
3 years ago
Welcome
Welcome to Integrity's Web3 community!
You might also like

Tanya Aggarwal
3 years ago
What I learned from my experience as a recent graduate working in venture capital
Every week I meet many people interested in VC. Many of them ask me what it's like to be a junior analyst in VC or what I've learned so far.
Looking back, I've learned many things as a junior VC, having gone through an almost-euphoric peak bull market, failed tech IPOs of 2019 including WeWorks' catastrophic fall, and the beginnings of a bearish market.
1. Network, network, network!
VCs spend 80% of their time networking. Junior VCs source deals or manage portfolios. You spend your time bringing startups to your fund or helping existing portfolio companies grow. Knowing stakeholders (corporations, star talent, investors) in your particular areas of investment helps you develop your portfolio.
Networking was one of my strengths. When I first started in the industry, I'd go to startup events and meet 50 people a month. Over time, I realized these relationships were shallow and I was only getting business cards. So I stopped seeing networking as a transaction. VC is a long-term game, so you should work with people you like. Now I know who I click with and can build deeper relationships with them. My network is smaller but more valuable than before.
2. The Most Important Metric Is Founder
People often ask how we pick investments. Why some companies can raise money and others can't is a mystery. The founder is the most important metric for VCs. When a company is young, the product, environment, and team all change, but the founder remains constant. VCs bet on the founder, not the company.
How do we decide which founders are best after 2-3 calls? When looking at a founder's profile, ask why this person can solve this problem. The founders' track record will tell. If the founder is a serial entrepreneur, you know he/she possesses the entrepreneur DNA and will likely succeed again. If it's his/her first startup, focus on industry knowledge to deliver the best solution.
3. A company's fate can be determined by macrotrends.
Macro trends are crucial. A company can have the perfect product, founder, and team, but if it's solving the wrong problem, it won't succeed. I've also seen average companies ride the wave to success. When you're on the right side of a trend, there's so much demand that more companies can get a piece of the pie.
In COVID-19, macro trends made or broke a company. Ed-tech and health-tech companies gained unicorn status and raised funding at inflated valuations due to sudden demand. With the easing of pandemic restrictions and the start of a bear market, many of these companies' valuations are in question.
4. Look for methods to ACTUALLY add value.
You only need to go on VC twitter (read: @vcstartterkit and @vcbrags) for 5 minutes or look at fin-meme accounts on Instagram to see how much VCs claim to add value but how little they actually do. VC is a long-term game, though. Long-term, founders won't work with you if you don't add value.
How can we add value when we're young and have no network? Leaning on my strengths helped me. Instead of viewing my age and limited experience as a disadvantage, I realized that I brought a unique perspective to the table.
As a VC, you invest in companies that will be big in 5-7 years, and millennials and Gen Z will have the most purchasing power. Because you can relate to that market, you can offer insights that most Partners at 40 can't. I added value by helping with hiring because I had direct access to university talent pools and by finding university students for product beta testing.
5. Develop your personal brand.
Generalists or specialists run most funds. This means that funds either invest across industries or have a specific mandate. Most funds are becoming specialists, I've noticed. Top-tier founders don't lack capital, so funds must find other ways to attract them. Why would a founder work with a generalist fund when a specialist can offer better industry connections and partnership opportunities?
Same for fund members. Founders want quality investors. Become a thought leader in your industry to meet founders. Create content and share your thoughts on industry-related social media. When I first started building my brand, I found it helpful to interview industry veterans to create better content than I could on my own. Over time, my content attracted quality founders so I didn't have to look for them.
These are my biggest VC lessons. This list isn't exhaustive, but it's my industry survival guide.

Jayden Levitt
2 years ago
Billionaire who was disgraced lost his wealth more quickly than anyone in history
If you're not genuine, you'll be revealed.
Sam Bankman-Fried (SBF) was called the Cryptocurrency Warren Buffet.
No wonder.
SBF's trading expertise, Blockchain knowledge, and ability to construct FTX attracted mainstream investors.
He had a fantastic worldview, donating much of his riches to charity.
As the onion layers peel back, it's clear he wasn't the altruistic media figure he portrayed.
SBF's mistakes were disastrous.
Customer deposits were traded and borrowed by him.
With ten other employees, he shared a $40 million mansion where they all had polyamorous relationships.
Tone-deaf and wasteful marketing expenditures, such as the $200 million spent to change the name of the Miami Heat stadium to the FTX Arena
Democrats received a $40 million campaign gift.
And now there seems to be no regret.
FTX was a 32-billion-dollar cryptocurrency exchange.
It went bankrupt practically overnight.
SBF, FTX's creator, exploited client funds to leverage trade.
FTX had $1 billion in customer withdrawal reserves against $9 billion in liabilities in sister business Alameda Research.
Bloomberg Billionaire Index says it's the largest and fastest net worth loss in history.
It gets worse.
SBF's net worth is $900 Million, however he must still finalize FTX's bankruptcy.
SBF's arrest in the Bahamas and SEC inquiry followed news that his cryptocurrency exchange had crashed, losing billions in customer deposits.
A journalist contacted him on Twitter D.M., and their exchange is telling.
His ideas are revealed.
Kelsey Piper says they didn't expect him to answer because people under investigation don't comment.
Bankman-Fried wanted to communicate, and the interaction shows he has little remorse.
SBF talks honestly about FTX gaming customers' money and insults his competition.
Reporter Kelsey Piper was outraged by what he said and felt the mistakes SBF says plague him didn't evident in the messages.
Before FTX's crash, SBF was a poster child for Cryptocurrency regulation and avoided criticizing U.S. regulators.
He tells Piper that his lobbying is just excellent PR.
It shows his genuine views and supports cynics' opinions that his attempts to win over U.S. authorities were good for his image rather than Crypto.
SBF’s responses are in Grey, and Pipers are in Blue.
It's unclear if SBF cut corners for his gain. In their Twitter exchange, Piper revisits an interview question about ethics.
SBF says, "All the foolish sh*t I said"
SBF claims FTX has never invested customer monies.
Piper challenged him on Twitter.
While he insisted FTX didn't use customer deposits, he said sibling business Alameda borrowed too much from FTX's balance sheet.
He did, basically.
When consumers tried to withdraw money, FTX was short.
SBF thought Alameda had enough money to cover FTX customers' withdrawals, but life sneaks up on you.
SBF believes most exchanges have done something similar to FTX, but they haven't had a bank run (a bunch of people all wanting to get their deposits out at the same time).
SBF believes he shouldn't have consented to the bankruptcy and kept attempting to raise more money because withdrawals would be open in a month with clients whole.
If additional money came in, he needed $8 billion to bridge the creditors' deficit, and there aren't many corporations with $8 billion to spare.
Once clients feel protected, they will continue to leave their assets on the exchange, according to one idea.
Kevin OLeary, a world-renowned hedge fund manager, says not all investors will walk through the open gate once the company is safe, therefore the $8 Billion wasn't needed immediately.
SBF claims the bankruptcy was his biggest error because he could have accumulated more capital.
Final Reflections
Sam Bankman-Fried, 30, became the world's youngest billionaire in four years.
Never listen to what people say about investing; watch what they do.
SBF is a trader who gets wrecked occasionally.
Ten first-time entrepreneurs ran FTX, screwing each other with no risk management.
It prevents opposing or challenging perspectives and echo chamber highs.
Twitter D.M. conversation with a journalist is the final nail.
He lacks an experienced crew.
This event will surely speed up much-needed regulation.
It's also prompted cryptocurrency exchanges to offer proof of reserves to calm customers.

Yogita Khatri
3 years ago
Moonbirds NFT sells for $1 million in first week
On Saturday, Moonbird #2642, one of the collection's rarest NFTs, sold for a record 350 ETH (over $1 million) on OpenSea.
The Sandbox, a blockchain-based gaming company based in Hong Kong, bought the piece. The seller, "oscuranft" on OpenSea, made around $600,000 after buying the NFT for 100 ETH a week ago.
Owl avatars
Moonbirds is a 10,000 owl NFT collection. It is one of the quickest collections to achieve bluechip status. Proof, a media startup founded by renowned VC Kevin Rose, launched Moonbirds on April 16.
Rose is currently a partner at True Ventures, a technology-focused VC firm. He was a Google Ventures general partner and has 1.5 million Twitter followers.
Rose has an NFT podcast on Proof. It follows Proof Collective, a group of 1,000 NFT collectors and artists, including Beeple, who hold a Proof Collective NFT and receive special benefits.
These include early access to the Proof podcast and in-person events.
According to the Moonbirds website, they are "the official Proof PFP" (picture for proof).
Moonbirds NFTs sold nearly $360 million in just over a week, according to The Block Research and Dune Analytics. Its top ten sales range from $397,000 to $1 million.
In the current market, Moonbirds are worth 33.3 ETH. Each NFT is 2.5 ETH. Holders have gained over 12 times in just over a week.
Why was it so popular?
The Block Research's NFT analyst, Thomas Bialek, attributes Moonbirds' rapid rise to Rose's backing, the success of his previous Proof Collective project, and collectors' preference for proven NFT projects.
Proof Collective NFT holders have made huge gains. These NFTs were sold in a Dutch auction last December for 5 ETH each. According to OpenSea, the current floor price is 109 ETH.
According to The Block Research, citing Dune Analytics, Proof Collective NFTs have sold over $39 million to date.
Rose has bigger plans for Moonbirds. Moonbirds is introducing "nesting," a non-custodial way for holders to stake NFTs and earn rewards.
Holders of NFTs can earn different levels of status based on how long they keep their NFTs locked up.
"As you achieve different nest status levels, we can offer you different benefits," he said. "We'll have in-person meetups and events, as well as some crazy airdrops planned."
Rose went on to say that Proof is just the start of "a multi-decade journey to build a new media company."
:max_bytes(150000):strip_icc():gifv():format(webp)/reiff_headshot-5bfc2a60c9e77c00519a70bd.jpg)