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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
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More on Web3 & Crypto
Juxtathinka
3 years ago
Why Is Blockchain So Popular?
What is Bitcoin?
The blockchain is a shared, immutable ledger that helps businesses record transactions and track assets. The blockchain can track tangible assets like cars, houses, and land. Tangible assets like intellectual property can also be tracked on the blockchain.
Imagine a blockchain as a distributed database split among computer nodes. A blockchain stores data in blocks. When a block is full, it is closed and linked to the next. As a result, all subsequent information is compiled into a new block that will be added to the chain once it is filled.
The blockchain is designed so that adding a transaction requires consensus. That means a majority of network nodes must approve a transaction. No single authority can control transactions on the blockchain. The network nodes use cryptographic keys and passwords to validate each other's transactions.
Blockchain History
The blockchain was not as popular in 1991 when Stuart Haber and W. Scott Stornetta worked on it. The blocks were designed to prevent tampering with document timestamps. Stuart Haber and W. Scott Stornetta improved their work in 1992 by using Merkle trees to increase efficiency and collect more documents on a single block.
In 2004, he developed Reusable Proof of Work. This system allows users to verify token transfers in real time. Satoshi Nakamoto invented distributed blockchains in 2008. He improved the blockchain design so that new blocks could be added to the chain without being signed by trusted parties.
Satoshi Nakomoto mined the first Bitcoin block in 2009, earning 50 Bitcoins. Then, in 2013, Vitalik Buterin stated that Bitcoin needed a scripting language for building decentralized applications. He then created Ethereum, a new blockchain-based platform for decentralized apps. Since the Ethereum launch in 2015, different blockchain platforms have been launched: from Hyperledger by Linux Foundation, EOS.IO by block.one, IOTA, NEO and Monero dash blockchain. The block chain industry is still growing, and so are the businesses built on them.
Blockchain Components
The Blockchain is made up of many parts:
1. Node: The node is split into two parts: full and partial. The full node has the authority to validate, accept, or reject any transaction. Partial nodes or lightweight nodes only keep the transaction's hash value. It doesn't keep a full copy of the blockchain, so it has limited storage and processing power.
2. Ledger: A public database of information. A ledger can be public, decentralized, or distributed. Anyone on the blockchain can access the public ledger and add data to it. It allows each node to participate in every transaction. The distributed ledger copies the database to all nodes. A group of nodes can verify transactions or add data blocks to the blockchain.
3. Wallet: A blockchain wallet allows users to send, receive, store, and exchange digital assets, as well as monitor and manage their value. Wallets come in two flavors: hardware and software. Online or offline wallets exist. Online or hot wallets are used when online. Without an internet connection, offline wallets like paper and hardware wallets can store private keys and sign transactions. Wallets generally secure transactions with a private key and wallet address.
4. Nonce: A nonce is a short term for a "number used once''. It describes a unique random number. Nonces are frequently generated to modify cryptographic results. A nonce is a number that changes over time and is used to prevent value reuse. To prevent document reproduction, it can be a timestamp. A cryptographic hash function can also use it to vary input. Nonces can be used for authentication, hashing, or even electronic signatures.
5. Hash: A hash is a mathematical function that converts inputs of arbitrary length to outputs of fixed length. That is, regardless of file size, the hash will remain unique. A hash cannot generate input from hashed output, but it can identify a file. Hashes can be used to verify message integrity and authenticate data. Cryptographic hash functions add security to standard hash functions, making it difficult to decipher message contents or track senders.
Blockchain: Pros and Cons
The blockchain provides a trustworthy, secure, and trackable platform for business transactions quickly and affordably. The blockchain reduces paperwork, documentation errors, and the need for third parties to verify transactions.
Blockchain security relies on a system of unaltered transaction records with end-to-end encryption, reducing fraud and unauthorized activity. The blockchain also helps verify the authenticity of items like farm food, medicines, and even employee certification. The ability to control data gives users a level of privacy that no other platform can match.
In the case of Bitcoin, the blockchain can only handle seven transactions per second. Unlike Hyperledger and Visa, which can handle ten thousand transactions per second. Also, each participant node must verify and approve transactions, slowing down exchanges and limiting scalability.
The blockchain requires a lot of energy to run. In addition, the blockchain is not a hugely distributable system and it is destructible. The security of the block chain can be compromised by hackers; it is not completely foolproof. Also, since blockchain entries are immutable, data cannot be removed. The blockchain's high energy consumption and limited scalability reduce its efficiency.
Why Is Blockchain So Popular?
The blockchain is a technology giant. In 2018, 90% of US and European banks began exploring blockchain's potential. In 2021, 24% of companies are expected to invest $5 million to $10 million in blockchain. By the end of 2024, it is expected that corporations will spend $20 billion annually on blockchain technical services.
Blockchain is used in cryptocurrency, medical records storage, identity verification, election voting, security, agriculture, business, and many other fields. The blockchain offers a more secure, decentralized, and less corrupt system of making global payments, which cryptocurrency enthusiasts love. Users who want to save time and energy prefer it because it is faster and less bureaucratic than banking and healthcare systems.
Most organizations have jumped on the blockchain bandwagon, and for good reason: the blockchain industry has never had more potential. The launch of IBM's Blockchain Wire, Paystack, Aza Finance and Bloom are visible proof of the wonders that the blockchain has done. The blockchain's cryptocurrency segment may not be as popular in the future as the blockchain's other segments, as evidenced by the various industries where it is used. The blockchain is here to stay, and it will be discussed for a long time, not just in tech, but in many industries.
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Coinbase
3 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.
Scott Hickmann
3 years ago
Welcome
Welcome to Integrity's Web3 community!
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Marcus Lu
3 years ago
The Brand Structure of U.S. Electric Vehicle Production
Will Tesla be able to maintain its lead in the EV market for very long?
This is one of the most pressing issues in the American auto sector today. One positive aspect of Tesla is the company's devoted customer base and recognizable name recognition (similar to Apple). It also invests more in research and development per vehicle than its rivals and has a head start in EV production.
Conversely, established automakers like Volkswagen are actively plotting their strategy to surpass Tesla. As the current market leaders, they have decades of experience in the auto industry and are spending billions to catch up.
We've visualized data from the EPA's 2022 Automotive Trends Report to bring you up to speed on this developing story.
Info for the Model Year of 2021
The full production data used in this infographic is for the 2021 model year, but it comes from a report for 2022.
Combined EV and PHEV output is shown in the table below (plug-in hybrid electric vehicle).
It is important to note that Toyota and Stellantis, the two largest legacy automakers in this dataset, only produced PHEVs. Toyota's first electric vehicle, the bZ4X, won't hit the market until 2023.
Stellantis seems to be falling even further behind, despite having enormous unrealized potential in its Jeep and Ram brands. Stellantis CEO Carlos Tavares said in a recent interview that the firm has budgeted $36 billion for electrification and software.
Legacy Brands with the Most Momentum
In the race to develop electric vehicles, some long-standing manufacturers have gotten the jump on their rivals.
Volkswagen, one of these storied manufacturers, has made a significant investment in electric vehicles (EVs) in the wake of the Dieselgate scandal. The company plans to roll out multiple EV models, including the ID.3 hatchback, ID.4 SUV, and ID. Buzz, with the goal of producing 22 million EVs by 2028. (an electric revival of the classic Microbus).
Even Ford is keeping up, having just announced an EV investment of $22 billion between 2021 and 2025. In November of 2022, the company manufactured their 150,000th Mustang Mach-E, and by the end of 2023, they hoped to have 270,000 of them in circulation.
Additionally, over 200,000 F-150 Lightnings have been reserved since Ford announced the truck. The Lightning is scheduled to have a production run of 15,000 in 2022, 55,000 in 2023, and 80,000 in 2024. Ford's main competitor in the electric pickup truck segment, Rivian, is on track to sell 25,000 vehicles by 2022.
Nick Nolan
3 years ago
In five years, starting a business won't be hip.
People are slowly recognizing entrepreneurship's downside.
Growing up, entrepreneurship wasn't common. High school class of 2012 had no entrepreneurs.
Businesses were different.
They had staff and a lengthy history of achievement.
I never wanted a business. It felt unattainable. My friends didn't care.
Weird.
People desired degrees to attain good jobs at big companies.
When graduated high school:
9 out of 10 people attend college
Earn minimum wage (7%) working in a restaurant or retail establishment
Or join the military (3%)
Later, entrepreneurship became a thing.
2014-ish
I was in the military and most of my high school friends were in college, so I didn't hear anything.
Entrepreneurship soared in 2015, according to Google Trends.
Then more individuals were interested. Entrepreneurship went from unusual to cool.
In 2015, it was easier than ever to build a website, run Facebook advertisements, and achieve organic social media reach.
There were several online business tools.
You didn't need to spend years or money figuring it out. Most entry barriers were gone.
Everyone wanted a side gig to escape the 95.
Small company applications have increased during the previous 10 years.
2011-2014 trend continues.
2015 adds 150,000 applications. 2016 adds 200,000. Plus 300,000 in 2017.
The graph makes it look little, but that's a considerable annual spike with no indications of stopping.
By 2021, new business apps had doubled.
Entrepreneurship will return to its early 2010s level.
I think we'll go backward in 5 years.
Entrepreneurship is half as popular as it was in 2015.
In the late 2020s and 30s, entrepreneurship will again be obscure.
Entrepreneurship's decade-long splendor is fading. People will cease escaping 9-5 and launch fewer companies.
That’s not a bad thing.
I think people have a rose-colored vision of entrepreneurship. It's fashionable. People feel that they're missing out if they're not entrepreneurial.
Reality is showing up.
People say on social media, "I knew starting a business would be hard, but not this hard."
More negative posts on entrepreneurship:
Luke adds:
Is being an entrepreneur ‘healthy’? I don’t really think so. Many like Gary V, are not role models for a well-balanced life. Despite what feel-good LinkedIn tells you the odds are against you as an entrepreneur. You have to work your face off. It’s a tough but rewarding lifestyle. So maybe let’s stop glorifying it because it takes a lot of (bleepin) work to survive a pandemic, mental health battles, and a competitive market.
Entrepreneurship is no longer a pipe dream.
It’s hard.
I went full-time in March 2020. I was done by April 2021. I had a good-paying job with perks.
When that fell through (on my start date), I had to continue my entrepreneurial path. I needed money by May 1 to pay rent.
Entrepreneurship isn't as great as many think.
Entrepreneurship is a serious business.
If you have a 9-5, the grass isn't greener here. Most people aren't telling the whole story when they post on social media or quote successful entrepreneurs.
People prefer to communicate their victories than their defeats.
Is this a bad thing?
I don’t think so.
Over the previous decade, entrepreneurship went from impossible to the finest thing ever.
It peaked in 2020-21 and is returning to reality.
Startups aren't for everyone.
If you like your job, don't quit.
Entrepreneurship won't amaze people if you quit your job.
It's irrelevant.
You're doomed.
And you'll probably make less money.
If you hate your job, quit. Change jobs and bosses. Changing jobs could net you a greater pay or better perks.
When you go solo, your paycheck and perks vanish. Did I mention you'll fail, sleep less, and stress more?
Nobody will stop you from pursuing entrepreneurship. You'll face several challenges.
Possibly.
Entrepreneurship may be romanticized for years.
Based on what I see from entrepreneurs on social media and trends, entrepreneurship is challenging and few will succeed.
Khoi Ho
3 years ago
After working at seven startups, here are the early-stage characteristics that contributed to profitability, unicorn status or successful acquisition.
I've worked in a People role at seven early-stage firms for over 15 years (I enjoy chasing a dream!). Few of the seven achieved profitability, including unicorn status or acquisition.
Did early-stage startups share anything? Was there a difference between winners and losers? YES.
I support founders and entrepreneurs building financially sustainable enterprises with a compelling cause. This isn't something everyone would do. A company's success demands more than guts. Founders drive startup success.
Six Qualities of Successful Startups
Successful startup founders either innately grasped the correlation between strong team engagement and a well-executed business model, or they knew how to ask and listen to others (executive coaches, other company leaders, the team itself) to learn about it.
Successful startups:
1. Co-founders agreed and got along personally.
Multi-founder startups are common. When co-founders agree on strategic decisions and are buddies, there's less friction and politics at work.
As a co-founder, ask your team if you're aligned. They'll explain.
I've seen C-level leaders harbor personal resentments over disagreements. A co-departure founder's caused volatile leadership and work disruptions that the team struggled to manage during and after.
2. Team stayed.
Successful startups have low turnover. Nobody is leaving. There may be a termination for performance, but other team members will have observed the issues and agreed with the decision.
You don't want organizational turnover of 30%+, with leaders citing performance issues but the team not believing them. This breeds suspicion.
Something is wrong if many employees leave voluntarily or involuntarily. You may hear about lack of empowerment, support, or toxic leadership in exit interviews and from the existing team. Intellectual capital loss and resource instability harm success.
3. Team momentum.
A successful startup's team is excited about its progress. Consistently achieving goals and having trackable performance metrics. Some describe this period of productivity as magical, with great talents joining the team and the right people in the right places. Increasing momentum.
I've also seen short-sighted decisions where only some departments, like sales and engineering, had goals. Lack of a unified goals system created silos and miscommunication. Some employees felt apathetic because they didn't know how they contributed to team goals.
4. Employees advanced in their careers.
Even if you haven't created career pathing or professional development programs, early-stage employees will grow and move into next-level roles. If you hire more experienced talent and leaders, expect them to mentor existing team members. Growing companies need good performers.
New talent shouldn't replace and discard existing talent. This creates animosity and makes existing employees feel unappreciated for their early contributions to the company.
5. The company lived its values.
Culture and identity are built on lived values. A company's values affect hiring, performance management, rewards, and other processes. Identify, practice, and believe in company values. Starting with team values instead of management or consultants helps achieve this. When a company's words and actions match, it builds trust.
When company values are beautifully displayed on a wall but few employees understand them, the opposite is true. If an employee can't name the company values, they're useless.
6. Communication was clear.
When necessary information is shared with the team, they feel included, trusted, and like owners. Transparency means employees have the needed information to do their jobs. Disclosure builds trust. The founders answer employees' questions honestly.
Information accessibility decreases office politics. Without transparency, even basic information is guarded and many decisions are made in secret. I've seen founders who don't share financial, board meeting, or compensation and equity information. The founders' lack of trust in the team wasn't surprising, so it was reciprocated.
The Choices
Finally. All six of the above traits (leadership alignment, minimal turnover, momentum, professional advancement, values, and transparency) were high in the profitable startups I've worked at, including unicorn status or acquisition.
I've seen these as the most common and constant signals of startup success or failure.
These characteristics are the product of founders' choices. These decisions lead to increased team engagement and business execution.
Here's something to consider for startup employees and want-to-bes. 90% of startups fail, despite the allure of building something new and gaining ownership. With the emotional and time investment in startup formation, look for startups with these traits to reduce your risk.
Both you and the startup will thrive in these workplaces.