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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
Sam Hickmann
3 years ago
Token taxonomy: Utility vs Security vs NFT
Let's examine the differences between the three main token types and their functions.
As Ethereum grew, the term "token" became a catch-all term for all assets built on the Ethereum blockchain. However, different tokens were grouped based on their applications and features, causing some confusion. Let's examine the modification of three main token types: security, utility, and non-fungible.
Utility tokens
They provide a specific utility benefit (or a number of such). A utility token is similar to a casino chip, a table game ticket, or a voucher. Depending on the terms of issuing, they can be earned and used in various ways. A utility token is a type of token that represents a tool or mechanism required to use the application in question. Like a service, a utility token's price is determined by supply and demand. Tokens can also be used as a bonus or reward mechanism in decentralized systems: for example, if you like someone's work, give them an upvote and they get a certain number of tokens. This is a way for authors or creators to earn money indirectly.
The most common way to use a utility token is to pay with them instead of cash for discounted goods or services.
Utility tokens are the most widely used by blockchain companies. Most cryptocurrency exchanges accept fees in native utility tokens.
Utility tokens can also be used as a reward. Companies tokenize their loyalty programs so that points can be bought and sold on blockchain exchanges. These tokens are widely used in decentralized companies as a bonus system. You can use utility tokens to reward creators for their contributions to a platform, for example. It also allows members to exchange tokens for specific bonuses and rewards on your site.
Unlike security tokens, which are subject to legal restrictions, utility tokens can be freely traded.
Security tokens
Security tokens are essentially traditional securities like shares, bonds, and investment fund units in a crypto token form.
The key distinction is that security tokens are typically issued by private firms (rather than public companies) that are not listed on stock exchanges and in which you can not invest right now. Banks and large venture funds used to be the only sources of funding. A person could only invest in private firms if they had millions of dollars in their bank account. Privately issued security tokens outperform traditional public stocks in terms of yield. Private markets grew 50% faster than public markets over the last decade, according to McKinsey Private Equity Research.
A security token is a crypto token whose value is derived from an external asset or company. So it is governed as security (read about the Howey test further in this article). That is, an ownership token derives its value from the company's valuation, assets on the balance sheet, or dividends paid to token holders.
Why are Security Tokens Important?
Cryptocurrency is a lucrative investment. Choosing from thousands of crypto assets can mean the difference between millionaire and bankrupt. Without security tokens, crypto investing becomes riskier and generating long-term profits becomes difficult. These tokens have lower risk than other cryptocurrencies because they are backed by real assets or business cash flows. So having them helps to diversify a portfolio and preserve the return on investment in riskier assets.
Security tokens open up new funding avenues for businesses. As a result, investors can invest in high-profit businesses that are not listed on the stock exchange.
The distinction between utility and security tokens isn't as clear as it seems. However, this increases the risk for token issuers, especially in the USA. The Howey test is the main pillar regulating judicial precedent in this area.
What is a Howey Test?
An "investment contract" is determined by the Howey Test, a lawsuit settled by the US Supreme Court. If it does, it's a security and must be disclosed and registered under the Securities Act of 1933 and the Securities Exchange Act of 1934.
If the SEC decides that a cryptocurrency token is a security, a slew of issues arise. In practice, this ensures that the SEC will decide when a token can be offered to US investors and if the project is required to file a registration statement with the SEC.
Due to the Howey test's extensive wording, most utility tokens will be classified as securities, even if not intended to be. Because of these restrictions, most ICOs are not available to US investors. When asked about ICOs in 2018, then-SEC Chairman Jay Clayton said they were securities. The given statement adds to the risk. If a company issues utility tokens without registering them as securities, the regulator may impose huge fines or even criminal charges.
What other documents regulate tokens?
Securities Act (1993) or Securities Exchange Act (1934) in the USA; MiFID directive and Prospectus Regulation in the EU. These laws require registering the placement of security tokens, limiting their transfer, but protecting investors.
Utility tokens have much less regulation. The Howey test determines whether a given utility token is a security. Tokens recognized as securities are now regulated as such. Having a legal opinion that your token isn't makes the implementation process much easier. Most countries don't have strict regulations regarding utility tokens except KYC (Know Your Client) and AML (Anti Money-Laundering).
As cryptocurrency and blockchain technologies evolve, more countries create UT regulations. If your company is based in the US, be aware of the Howey test and the Bank Secrecy Act. It classifies UTs and their issuance as money transmission services in most states, necessitating a license and strict regulations. Due to high regulatory demands, UT issuers try to avoid the United States as a whole. A new law separating utility tokens from bank secrecy act will be introduced in the near future, giving hope to American issuers.
The rest of the world has much simpler rules requiring issuers to create basic investor disclosures. For example, the latest European legislation (MiCA) allows businesses to issue utility tokens without regulator approval. They must also prepare a paper with all the necessary information for the investors.
A payment token is a utility token that is used to make a payment. They may be subject to electronic money laws.
Because non-fungible tokens are a new instrument, there is no regulating paper yet. However, if the NFT is fractionalized, the smaller tokens acquired may be seen as securities.
NFT Tokens
Collectible tokens are also known as non-fungible tokens. Their distinctive feature is that they denote unique items such as artwork, merch, or ranks. Unlike utility tokens, which are fungible, meaning that two of the same tokens are identical, NFTs represent a unit of possession that is strictly one of a kind. In a way, NFTs are like baseball cards, each one unique and valuable.
As for today, the most recognizable NFT function is to preserve the fact of possession. Owning an NFT with a particular gif, meme, or sketch does not transfer the intellectual right to the possessor, but is analogous to owning an original painting signed by the author.
Collectible tokens can also be used as digital souvenirs, so to say. Businesses can improve their brand image by issuing their own branded NFTs, which represent ranks or achievements within the corporate ecosystem. Gamifying business ecosystems would allow people to connect with a brand and feel part of a community.
Which type of tokens is right for you as a business to raise capital?
For most businesses, it's best to raise capital with security tokens by selling existing shares to global investors. Utility tokens aren't meant to increase in value over time, so leave them for gamification and community engagement. In a blockchain-based business, however, a utility token is often the lifeblood of the operation, and its appreciation potential is directly linked to the company's growth. You can issue multiple tokens at once, rather than just one type. It exposes you to various investors and maximizes the use of digital assets.
Which tokens should I buy?
There are no universally best tokens. Their volatility, industry, and risk-reward profile vary. This means evaluating tokens in relation to your overall portfolio and personal preferences: what industries do you understand best, what excites you, how do you approach taxes, and what is your planning horizon? To build a balanced portfolio, you need to know these factors.
Conclusion
The three most common types of tokens today are security, utility, and NFT. Security tokens represent stocks, mutual funds, and bonds. Utility tokens can be perceived as an inside-product "currency" or "ignition key" that grants you access to goods and services or empowers with other perks. NFTs are unique collectible units that identify you as the owner of something.
Amelie Carver
3 years ago
Web3 Needs More Writers to Educate Us About It
WRITE FOR THE WEB3
Why web3’s messaging is lost and how crypto winter is growing growth seeds
People interested in crypto, blockchain, and web3 typically read Bitcoin and Ethereum's white papers. It's a good idea. Documents produced for developers and academia aren't always the ideal resource for beginners.
Given the surge of extremely technical material and the number of fly-by-nights, rug pulls, and other scams, it's little wonder mainstream audiences regard the blockchain sector as an expensive sideshow act.
What's the solution?
Web3 needs more than just builders.
After joining TikTok, I followed Amy Suto of SutoScience. Amy switched from TV scriptwriting to IT copywriting years ago. She concentrates on web3 now. Decentralized autonomous organizations (DAOs) are seeking skilled copywriters for web3.
Amy has found that web3's basics are easy to grasp; you don't need technical knowledge. There's a paradigm shift in knowing the basics; be persistent and patient.
Apple is positioning itself as a data privacy advocate, leveraging web3's zero-trust ethos on data ownership.
Finn Lobsien, who writes about web3 copywriting for the Mirror and Twitter, agrees: acronyms and abstractions won't do.
Web3 preached to the choir. Curious newcomers have only found whitepapers and scams when trying to learn why the community loves it. No wonder people resist education and buy-in.
Due to the gender gap in crypto (Crypto Bro is not just a stereotype), it attracts people singing to the choir or trying to cash in on the next big thing.
Last year, the industry was booming, so writing wasn't necessary. Now that the bear market has returned (for everyone, but especially web3), holding readers' attention is a valuable skill.
White papers and the Web3
Why does web3 rely so much on non-growth content?
Businesses must polish and improve their messaging moving into the 2022 recession. The 2021 tech boom provided such a sense of affluence and (unsustainable) growth that no one needed great marketing material. The market found them.
This was especially true for web3 and the first-time crypto believers. Obviously. If they knew which was good.
White papers help. White papers are highly technical texts that walk a reader through a product's details. How Does a White Paper Help Your Business and That White Paper Guy discuss them.
They're meant for knowledgeable readers. Investors and the technical (academic/developer) community read web3 white papers. White papers are used when a product is extremely technical or difficult to assist an informed reader to a conclusion. Web3 uses them most often for ICOs (initial coin offerings).
White papers for web3 education help newcomers learn about the web3 industry's components. It's like sending a first-grader to the Annotated Oxford English Dictionary to learn to read. It's a reference, not a learning tool, for words.
Newcomers can use platforms that teach the basics. These included Coinbase's Crypto Basics tutorials or Cryptochicks Academy, founded by the mother of Ethereum's inventor to get more women utilizing and working in crypto.
Discord and Web3 communities
Discord communities are web3's opposite. Discord communities involve personal communications and group involvement.
Online audience growth begins with community building. User personas prefer 1000 dedicated admirers over 1 million lukewarm followers, and the language is much more easygoing. Discord groups are renowned for phishing scams, compromised wallets, and incorrect information, especially since the crypto crisis.
White papers and Discord increase industry insularity. White papers are complicated, and Discord has a high risk threshold.
Web3 and writing ads
Copywriting is emotional, but white papers are logical. It uses the brain's quick-decision centers. It's meant to make the reader invest immediately.
Not bad. People think sales are sleazy, but they can spot the poor things.
Ethical copywriting helps you reach the correct audience. People who gain a following on Medium are likely to have copywriting training and a readership (or three) in mind when they publish. Tim Denning and Sinem Günel know how to identify a target audience and make them want to learn more.
In a fast-moving market, copywriting is less about long-form content like sales pages or blogs, but many organizations do. Instead, the copy is concise, individualized, and high-value. Tweets, email marketing, and IM apps (Discord, Telegram, Slack to a lesser extent) keep engagement high.
What does web3's messaging lack? As DAOs add stricter copyrighting, narrative and connecting tales seem to be missing.
Web3 is passionate about constructing the next internet. Now, they can connect their passion to a specific audience so newcomers understand why.
Yogesh Rawal
3 years ago
Blockchain to solve growing privacy challenges
Most online activity is now public. Businesses collect, store, and use our personal data to improve sales and services.
In 2014, Uber executives and employees were accused of spying on customers using tools like maps. Another incident raised concerns about the use of ‘FaceApp'. The app was created by a small Russian company, and the photos can be used in unexpected ways. The Cambridge Analytica scandal exposed serious privacy issues. The whole incident raised questions about how governments and businesses should handle data. Modern technologies and practices also make it easier to link data to people.
As a result, governments and regulators have taken steps to protect user data. The General Data Protection Regulation (GDPR) was introduced by the EU to address data privacy issues. The law governs how businesses collect and process user data. The Data Protection Bill in India and the General Data Protection Law in Brazil are similar.
Despite the impact these regulations have made on data practices, a lot of distance is yet to cover.
Blockchain's solution
Blockchain may be able to address growing data privacy concerns. The technology protects our personal data by providing security and anonymity. The blockchain uses random strings of numbers called public and private keys to maintain privacy. These keys allow a person to be identified without revealing their identity. Blockchain may be able to ensure data privacy and security in this way. Let's dig deeper.
Financial transactions
Online payments require third-party services like PayPal or Google Pay. Using blockchain can eliminate the need to trust third parties. Users can send payments between peers using their public and private keys without providing personal information to a third-party application. Blockchain will also secure financial data.
Healthcare data
Blockchain technology can give patients more control over their data. There are benefits to doing so. Once the data is recorded on the ledger, patients can keep it secure and only allow authorized access. They can also only give the healthcare provider part of the information needed.
The major challenge
We tried to figure out how blockchain could help solve the growing data privacy issues. However, using blockchain to address privacy concerns has significant drawbacks. Blockchain is not designed for data privacy. A ‘distributed' ledger will be used to store the data. Another issue is the immutability of blockchain. Data entered into the ledger cannot be changed or deleted. It will be impossible to remove personal data from the ledger even if desired.
MIT's Enigma Project aims to solve this. Enigma's ‘Secret Network' allows nodes to process data without seeing it. Decentralized applications can use Secret Network to use encrypted data without revealing it.
Another startup, Oasis Labs, uses blockchain to address data privacy issues. They are working on a system that will allow businesses to protect their customers' data.
Conclusion
Blockchain technology is already being used. Several governments use blockchain to eliminate centralized servers and improve data security. In this information age, it is vital to safeguard our data. How blockchain can help us in this matter is still unknown as the world explores the technology.
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Jon Brosio
3 years ago
Every time I use this 6-part email sequence, I almost always make four figures.
(And you can have it for free)
Master email to sell anything.
Most novice creators don't know how to begin.
Many use online templates. These are usually fluff-filled and niche-specific.
They're robotic and "salesy."
I've attended 3 courses, read 10 books, and sent 600,000 emails in the past five years.
Outcome?
This *proven* email sequence assures me a month's salary every time I send it.
What you will discover in this article is that:
A full 6-part email sales cycle
The essential elements you must incorporate
placeholders and text-filled images
(Applies to any niche)
This can be a product introduction, holiday, or welcome sequence. This works for email-saleable products.
Let's start
Email 1: Describe your issue
This email is crucial.
How to? We introduce a subscriber or prospect's problem. Later, we'll frame our offer as the solution.
Label the:
Problem
Why it still hasn't been fixed
Resulting implications for the customer
This puts our new subscriber in solve mode and queues our offer:
Email 2: Amplify the consequences
We're still causing problems.
We've created the problem, but now we must employ emotion and storytelling to make it real. We also want to forecast life if nothing changes.
Let's feel:
What occurs if it is not resolved?
Why is it crucial to fix it immediately?
Tell a tale of a person who was in their position. To emphasize the effects, use a true account of another person (or of yourself):
Email 3: Share a transformation story
Selling stories.
Whether in an email, landing page, article, or video. Humanize stories. They give information meaning.
This is where "issue" becomes "solution."
Let's reveal:
A tale of success
A new existence and result
tools and tactics employed
Start by transforming yourself.
Email 4: Prove with testimonials
No one buys what you say.
Emotionally stirred people buy and act. They believe in the product. They feel that if they buy, it will work.
Social proof shows prospects that your solution will help them.
Add:
Earlier and Later
Testimonials
Reviews
Proof this deal works:
Email 5: Reveal your offer
It's showtime.
This is it. Until now, describing the offer and offering links to a landing page have been sparse in the email pictures.
We've been tense. Gaining steam. Building suspense. Email 5 reveals all.
In this email:
a description of the deal
A word about a promise
recapitulation of the transformation
and make a reference to the urgency Everything should be spelled out clearly:
Email no. 6: Instill urgency
When there are stakes, humans act.
Creating and marketing with haste raises the stakes. Urgency makes a prospect act because they'll miss out or gain immensely.
Urgency converts. Use:
short time
Screening
Scarcity
Urgency and conversions. Limited-time offers are easy.
TL;DR
Use this proven 6-part email sequence (that turns subscribers into profit):
Introduce a problem
Amplify it with emotions
Share transformation story
Prove it works with testimonials
Value-stack and present your offer
Drive urgency and entice the purchase
Dani Herrera
3 years ago
What prevents companies from disclosing salary information?
Yes, salary details ought to be mentioned in job postings. Recruiters and candidates both agree, so why doesn't it happen?
The short answer is “Unfortunately, it’s not the Recruiter’s decision”. The longer answer is well… A LOT.
Starting in November 2022, NYC employers must include salary ranges in job postings. It should have started in May, but companies balked.
I'm thrilled about salary transparency. This decision will promote fair, inclusive, and equitable hiring practices, and I'm sure other states will follow suit. Good news!
Candidates, recruiters, and ED&I practitioners have advocated for pay transparency for years. Why the opposition?
Let's quickly review why companies have trouble sharing salary bands.
💰 Pay Parity
Many companies and leaders still oppose pay parity. Yes, even in 2022.
💰 Pay Equity
Many companies believe in pay parity and have reviewed their internal processes and systems to ensure equality.
However, Pay Equity affects who gets roles/promotions/salary raises/bonuses and when. Enter the pay gap!
💰Pay Transparency and its impact on Talent Retention
Sharing salary bands with external candidates (and the world) means current employees will have access to that information, which is one of the main reasons companies don't share salary data.
If a company has Pay Parity and Pay Equity issues, they probably have a Pay Transparency policy as well.
Sharing salary information with external candidates without ensuring current employees understand their own salary bands and how promotions/raises are decided could impact talent retention strategies.
This information should help clarify recent conversations.
Nicolas Tresegnie
3 years ago
Launching 10 SaaS applications in 100 days
Apocodes helps entrepreneurs create SaaS products without writing code. This post introduces micro-SaaS and outlines its basic strategy.
Strategy
Vision and strategy differ when starting a startup.
The company's long-term future state is outlined in the vision. It establishes the overarching objectives the organization aims to achieve while also justifying its existence. The company's future is outlined in the vision.
The strategy consists of a collection of short- to mid-term objectives, the accomplishment of which will move the business closer to its vision. The company gets there through its strategy.
The vision should be stable, but the strategy must be adjusted based on customer input, market conditions, or previous experiments.
Begin modestly and aim high.
Be truthful. It's impossible to automate SaaS product creation from scratch. It's like climbing Everest without running a 5K. Physical rules don't prohibit it, but it would be suicide.
Apocodes 5K equivalent? Two options:
(A) Create a feature that includes every setting option conceivable. then query potential clients “Would you choose us to build your SaaS solution if we offered 99 additional features of the same caliber?” After that, decide which major feature to implement next.
(B) Build a few straightforward features with just one or two configuration options. Then query potential clients “Will this suffice to make your product?” What's missing if not? Finally, tweak the final result a bit before starting over.
(A) is an all-or-nothing approach. It's like training your left arm to climb Mount Everest. My right foot is next.
(B) is a better method because it's iterative and provides value to customers throughout.
Focus on a small market sector, meet its needs, and expand gradually. Micro-SaaS is Apocode's first market.
What is micro-SaaS.
Micro-SaaS enterprises have these characteristics:
A limited range: They address a specific problem with a small number of features.
A small group of one to five individuals.
Low external funding: The majority of micro-SaaS companies have Total Addressable Markets (TAM) under $100 million. Investors find them unattractive as a result. As a result, the majority of micro-SaaS companies are self-funded or bootstrapped.
Low competition: Because they solve problems that larger firms would rather not spend time on, micro-SaaS enterprises have little rivalry.
Low upkeep: Because of their simplicity, they require little care.
Huge profitability: Because providing more clients incurs such a small incremental cost, high profit margins are possible.
Micro-SaaS enterprises created with no-code are Apocode's ideal first market niche.
We'll create our own micro-SaaS solutions to better understand their needs. Although not required, we believe this will improve community discussions.
The challenge
In 100 days (September 12–December 20, 2022), we plan to build 10 micro-SaaS enterprises using Apocode.
They will be:
Self-serve: Customers will be able to use the entire product experience without our manual assistance.
Real: They'll deal with actual issues. They won't be isolated proofs of concept because we'll keep up with them after the challenge.
Both free and paid options: including a free plan and a free trial period. Although financial success would be a good result, the challenge's stated objective is not financial success.
This will let us design Apocodes features, showcase them, and talk to customers.
(Edit: The first micro-SaaS was launched!)
Follow along
If you want to follow the story of Apocode or our progress in this challenge, you can subscribe here.
If you are interested in using Apocode, sign up here.
If you want to provide feedback, discuss the idea further or get involved, email me at nicolas.tresegnie@gmail.com