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

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.
Langston Thomas
3 years ago
A Simple Guide to NFT Blockchains
Ethereum's blockchain rules NFTs. Many consider it the one-stop shop for NFTs, and it's become the most talked-about and trafficked blockchain in existence.
Other blockchains are becoming popular in NFTs. Crypto-artists and NFT enthusiasts have sought new places to mint and trade NFTs due to Ethereum's high transaction costs and environmental impact.
When choosing a blockchain to mint on, there are several factors to consider. Size, creator costs, consumer spending habits, security, and community input are important. We've created a high-level summary of blockchains for NFTs to help clarify the fast-paced world of web3 tech.
Ethereum
Ethereum currently has the most NFTs. It's decentralized and provides financial and legal services without intermediaries. It houses popular NFT marketplaces (OpenSea), projects (CryptoPunks and the Bored Ape Yacht Club), and artists (Pak and Beeple).
It's also expensive and energy-intensive. This is because Ethereum works using a Proof-of-Work (PoW) mechanism. PoW requires computers to solve puzzles to add blocks and transactions to the blockchain. Solving these puzzles requires a lot of computer power, resulting in astronomical energy loss.
You should consider this blockchain first due to its popularity, security, decentralization, and ease of use.
Solana
Solana is a fast programmable blockchain. Its proof-of-history and proof-of-stake (PoS) consensus mechanisms eliminate complex puzzles. Reduced validation times and fees result.
PoS users stake their cryptocurrency to become a block validator. Validators get SOL. This encourages and rewards users to become stakers. PoH works with PoS to cryptographically verify time between events. Solana blockchain ensures transactions are in order and found by the correct leader (validator).
Solana's PoS and PoH mechanisms keep transaction fees and times low. Solana isn't as popular as Ethereum, so there are fewer NFT marketplaces and blockchain traders.
Tezos
Tezos is a greener blockchain. Tezos rose in 2021. Hic et Nunc was hailed as an economic alternative to Ethereum-centric marketplaces until Nov. 14, 2021.
Similar to Solana, Tezos uses a PoS consensus mechanism and only a PoS mechanism to reduce computational work. This blockchain uses two million times less energy than Ethereum. It's cheaper than Ethereum (but does cost more than Solana).
Tezos is a good place to start minting NFTs in bulk. Objkt is the largest Tezos marketplace.
Flow
Flow is a high-performance blockchain for NFTs, games, and decentralized apps (dApps). Flow is built with scalability in mind, so billions of people could interact with NFTs on the blockchain.
Flow became the NBA's blockchain partner in 2019. Flow, a product of Dapper labs (the team behind CryptoKitties), launched and hosts NBA Top Shot, making the blockchain integral to the popularity of non-fungible tokens.
Flow uses PoS to verify transactions, like Tezos. Developers are working on a model to handle 10,000 transactions per second on the blockchain. Low transaction fees.
Flow NFTs are tradeable on Blocktobay, OpenSea, Rarible, Foundation, and other platforms. NBA, NFL, UFC, and others have launched NFT marketplaces on Flow. Flow isn't as popular as Ethereum, resulting in fewer NFT marketplaces and blockchain traders.
Asset Exchange (WAX)
WAX is king of virtual collectibles. WAX is popular for digitalized versions of legacy collectibles like trading cards, figurines, memorabilia, etc.
Wax uses a PoS mechanism, but also creates carbon offset NFTs and partners with Climate Care. Like Flow, WAX transaction fees are low, and network fees are redistributed to the WAX community as an incentive to collectors.
WAX marketplaces host Topps, NASCAR, Hot Wheels, and cult classic film franchises like Godzilla, The Princess Bride, and Spiderman.
Binance Smart Chain
BSC is another good option for balancing fees and performance. High-speed transactions and low fees hurt decentralization. BSC is most centralized.
Binance Smart Chain uses Proof of Staked Authority (PoSA) to support a short block time and low fees. The 21 validators needed to run the exchange switch every 24 hours. 11 of the 21 validators are directly connected to the Binance Crypto Exchange, according to reports.
While many in the crypto and NFT ecosystems dislike centralization, the BSC NFT market picked up speed in 2021. OpenBiSea, AirNFTs, JuggerWorld, and others are gaining popularity despite not having as robust an ecosystem as Ethereum.

Marco Manoppo
3 years ago
Failures of DCG and Genesis
Don't sleep with your own sister.
70% of lottery winners go broke within five years. You've heard the last one. People who got rich quickly without setbacks and hard work often lose it all. My father said, "Easy money is easily lost," and a wealthy friend who owns a family office said, "The first generation makes it, the second generation spends it, and the third generation blows it."
This is evident. Corrupt politicians in developing countries live lavishly, buying their third wives' fifth Hermès bag and celebrating New Year's at The Brando Resort. A successful businessperson from humble beginnings is more conservative with money. More so if they're atom-based, not bit-based. They value money.
Crypto can "feel" easy. I have nothing against capital market investing. The global financial system is shady, but that's another topic. The problem started when those who took advantage of easy money started affecting other businesses. VCs did minimal due diligence on FTX because they needed deal flow and returns for their LPs. Lenders did minimum diligence and underwrote ludicrous loans to 3AC because they needed revenue.
Alameda (hence FTX) and 3AC made "easy money" Genesis and DCG aren't. Their businesses are more conventional, but they underestimated how "easy money" can hurt them.
Genesis has been the victim of easy money hubris and insolvency, losing $1 billion+ to 3AC and $200M to FTX. We discuss the implications for the broader crypto market.
Here are the quick takeaways:
Genesis is one of the largest and most notable crypto lenders and prime brokerage firms.
DCG and Genesis have done related party transactions, which can be done right but is a bad practice.
Genesis owes DCG $1.5 billion+.
If DCG unwinds Grayscale's GBTC, $9-10 billion in BTC will hit the market.
DCG will survive Genesis.
What happened?
Let's recap the FTX shenanigan from two weeks ago. Shenanigans! Delphi's tweet sums up the craziness. Genesis has $175M in FTX.
Cred's timeline: I hate bad crisis management. Yes, admitting their balance sheet hole right away might've sparked more panic, and there's no easy way to convey your trouble, but no one ever learns.
By November 23, rumors circulated online that the problem could affect Genesis' parent company, DCG. To address this, Barry Silbert, Founder, and CEO of DCG released a statement to shareholders.
A few things are confirmed thanks to this statement.
DCG owes $1.5 billion+ to Genesis.
$500M is due in 6 months, and the rest is due in 2032 (yes, that’s not a typo).
Unless Barry raises new cash, his last-ditch efforts to repay the money will likely push the crypto market lower.
Half a year of GBTC fees is approximately $100M.
They can pay $500M with GBTC.
With profits, sell another port.
Genesis has hired a restructuring adviser, indicating it is in trouble.
Rehypothecation
Every crypto problem in the past year seems to be rehypothecation between related parties, excessive leverage, hubris, and the removal of the money printer. The Bankless guys provided a chart showing 2021 crypto yield.
In June 2022, @DataFinnovation published a great investigation about 3AC and DCG. Here's a summary.
3AC borrowed BTC from Genesis and pledged it to create Grayscale's GBTC shares.
3AC uses GBTC to borrow more money from Genesis.
This lets 3AC leverage their capital.
3AC's strategy made sense because GBTC had a premium, creating "free money."
GBTC's discount and LUNA's implosion caused problems.
3AC lost its loan money in LUNA.
Margin called on 3ACs' GBTC collateral.
DCG bought GBTC to avoid a systemic collapse and a larger discount.
Genesis lost too much money because 3AC can't pay back its loan. DCG "saved" Genesis, but the FTX collapse hurt Genesis further, forcing DCG and Genesis to seek external funding.
bruh…
Learning Experience
Co-borrowing. Unnecessary rehypothecation. Extra space. Governance disaster. Greed, hubris. Crypto has repeatedly shown it can recreate traditional financial system disasters quickly. Working in crypto is one of the best ways to learn crazy financial tricks people will do for a quick buck much faster than if you dabble in traditional finance.
Moving Forward
I think the crypto industry needs to consider its future. This is especially true for professionals. I'm not trying to scare you. In 2018 and 2020, I had doubts. No doubts now. Detailing the crypto industry's potential outcomes helped me gain certainty and confidence in its future. This includes VCs' benefits and talking points during the bull market, as well as what would happen if government regulations became hostile, etc. Even if that happens, I'm certain. This is permanent. I may write a post about that soon.
Sincerely,
M.
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Katrine Tjoelsen
3 years ago
8 Communication Hacks I Use as a Young Employee
Learn these subtle cues to gain influence.
Hate being ignored?
As a 24-year-old, I struggled at work. Attention-getting tips How to avoid being judged by my size, gender, and lack of wrinkles or gray hair?
I've learned seniority hacks. Influence. Within two years as a product manager, I led a team. I'm a Stanford MBA student.
These communication hacks can make you look senior and influential.
1. Slowly speak
We speak quickly because we're afraid of being interrupted.
When I doubt my ideas, I speak quickly. How can we slow down? Jamie Chapman says speaking slowly saps our energy.
Chapman suggests emphasizing certain words and pausing.
2. Interrupted? Stop the stopper
Someone interrupt your speech?
Don't wait. "May I finish?" No pause needed. Stop interrupting. I first tried this in Leadership Laboratory at Stanford. How quickly I gained influence amazed me.
Next time, try “May I finish?” If that’s not enough, try these other tips from Wendy R.S. O’Connor.
3. Context
Others don't always see what's obvious to you.
Through explanation, you help others see the big picture. If a senior knows it, you help them see where your work fits.
4. Don't ask questions in statements
“Your statement lost its effect when you ended it on a high pitch,” a group member told me. Upspeak, it’s called. I do it when I feel uncertain.
Upspeak loses influence and credibility. Unneeded. When unsure, we can say "I think." We can even ask a proper question.
Someone else's boasting is no reason to be dismissive. As leaders and colleagues, we should listen to our colleagues even if they use this speech pattern.
Give your words impact.
5. Signpost structure
Signposts improve clarity by providing structure and transitions.
Communication coach Alexander Lyon explains how to use "first," "second," and "third" He explains classic and summary transitions to help the listener switch topics.
Signs clarify. Clarity matters.
6. Eliminate email fluff
“Fine. When will the report be ready? — Jeff.”
Notice how senior leaders write short, direct emails? I often use formalities like "dear," "hope you're well," and "kind regards"
Formality is (usually) unnecessary.
7. Replace exclamation marks with periods
See how junior an exclamation-filled email looks:
Hi, all!
Hope you’re as excited as I am for tomorrow! We’re celebrating our accomplishments with cake! Join us tomorrow at 2 pm!
See you soon!
Why the exclamation points? Why not just one?
Hi, all.
Hope you’re as excited as I am for tomorrow. We’re celebrating our accomplishments with cake. Join us tomorrow at 2 pm!
See you soon.
8. Take space
"Playing high" means having an open, relaxed body, says Stanford professor and author Deborah Gruenfield.
Crossed legs or looking small? Relax. Get bigger.

Simon Egersand
3 years ago
Working from home for more than two years has taught me a lot.
Since the pandemic, I've worked from home. It’s been +2 years (wow, time flies!) now, and during this time I’ve learned a lot. My 4 remote work lessons.
I work in a remote distributed team. This team setting shaped my experience and teachings.
Isolation ("I miss my coworkers")
The most obvious point. I miss going out with my coworkers for coffee, weekend chats, or just company while I work. I miss being able to go to someone's desk and ask for help. On a remote world, I must organize a meeting, share my screen, and avoid talking over each other in Zoom - sigh!
Social interaction is more vital for my health than I believed.
Online socializing stinks
My company used to come together every Friday to play Exploding Kittens, have food and beer, and bond over non-work things.
Different today. Every Friday afternoon is for fun, but it's not the same. People with screen weariness miss meetings, which makes sense. Sometimes you're too busy on Slack to enjoy yourself.
We laugh in meetings, but it's not the same as face-to-face.
Digital social activities can't replace real-world ones
Improved Work-Life Balance, if You Let It
At the outset of the pandemic, I recognized I needed to take better care of myself to survive. After not leaving my apartment for a few days and feeling miserable, I decided to walk before work every day. This turned into a passion for exercise, and today I run or go to the gym before work. I use my commute time for healthful activities.
Working from home makes it easier to keep working after hours. I sometimes forget the time and find myself writing coding at dinnertime. I said, "One more test." This is a disadvantage, therefore I keep my office schedule.
Spend your commute time properly and keep to your office schedule.
Remote Pair Programming Is Hard
As a software developer, I regularly write code. My team sometimes uses pair programming to write code collaboratively. One person writes code while another watches, comments, and asks questions. I won't list them all here.
Internet pairing is difficult. My team struggles with this. Even with Tuple, it's challenging. I lose attention when I get a notification or check my computer.
I miss a pen and paper to rapidly sketch down my thoughts for a colleague or a whiteboard for spirited talks with others. Best answers are found through experience.
Real-life pair programming beats the best remote pair programming tools.
Lessons Learned
Here are 4 lessons I've learned working remotely for 2 years.
-
Socializing is more vital to my health than I anticipated.
-
Digital social activities can't replace in-person ones.
-
Spend your commute time properly and keep your office schedule.
-
Real-life pair programming beats the best remote tools.
Conclusion
Our era is fascinating. Remote labor has existed for years, but software companies have just recently had to adapt. Companies who don't offer remote work will lose talent, in my opinion.
We're still figuring out the finest software development approaches, programming language features, and communication methods since the 1960s. I can't wait to see what advancements assist us go into remote work.
I'll certainly work remotely in the next years, so I'm interested to see what I've learnt from this post then.
This post is a summary of this one.
Matthew Royse
3 years ago
7 ways to improve public speaking
How to overcome public speaking fear and give a killer presentation
"Public speaking is people's biggest fear, according to studies. Death's second. The average person is better off in the casket than delivering the eulogy." — American comedian, actor, writer, and producer Jerry Seinfeld
People fear public speaking, according to research. Public speaking can be intimidating.
Most professions require public speaking, whether to 5, 50, 500, or 5,000 people. Your career will require many presentations. In a small meeting, company update, or industry conference.
You can improve your public speaking skills. You can reduce your anxiety, improve your performance, and feel more comfortable speaking in public.
“If I returned to college, I'd focus on writing and public speaking. Effective communication is everything.” — 38th president Gerald R. Ford
You can deliver a great presentation despite your fear of public speaking. There are ways to stay calm while speaking and become a more effective public speaker.
Seven tips to improve your public speaking today. Let's help you overcome your fear (no pun intended).
Know your audience.
"You're not being judged; the audience is." — Entrepreneur, author, and speaker Seth Godin
Understand your audience before speaking publicly. Before preparing a presentation, know your audience. Learn what they care about and find useful.
Your presentation may depend on where you're speaking. A classroom is different from a company meeting.
Determine your audience before developing your main messages. Learn everything about them. Knowing your audience helps you choose the right words, information (thought leadership vs. technical), and motivational message.
2. Be Observant
Observe others' speeches to improve your own. Watching free TED Talks on education, business, science, technology, and creativity can teach you a lot about public speaking.
What worked and what didn't?
What would you change?
Their strengths
How interesting or dull was the topic?
Note their techniques to learn more. Studying the best public speakers will amaze you.
Learn how their stage presence helped them communicate and captivated their audience. Please note their pauses, humor, and pacing.
3. Practice
"A speaker should prepare based on what he wants to learn, not say." — Author, speaker, and pastor Tod Stocker
Practice makes perfect when it comes to public speaking. By repeating your presentation, you can find your comfort zone.
When you've practiced your presentation many times, you'll feel natural and confident giving it. Preparation helps overcome fear and anxiety. Review notes and important messages.
When you know the material well, you can explain it better. Your presentation preparation starts before you go on stage.
Keep a notebook or journal of ideas, quotes, and examples. More content means better audience-targeting.
4. Self-record
Videotape your speeches. Check yourself. Body language, hands, pacing, and vocabulary should be reviewed.
Best public speakers evaluate their performance to improve.
Write down what you did best, what you could improve and what you should stop doing after watching a recording of yourself. Seeing yourself can be unsettling. This is how you improve.
5. Remove text from slides
"Humans can't read and comprehend screen text while listening to a speaker. Therefore, lots of text and long, complete sentences are bad, bad, bad.” —Communications expert Garr Reynolds
Presentation slides shouldn't have too much text. 100-slide presentations bore the audience. Your slides should preview what you'll say to the audience.
Use slides to emphasize your main point visually.
If you add text, use at least 40-point font. Your slides shouldn't require squinting to read. You want people to watch you, not your slides.
6. Body language
"Body language is powerful." We had body language before speech, and 80% of a conversation is read through the body, not the words." — Dancer, writer, and broadcaster Deborah Bull
Nonverbal communication dominates. Our bodies speak louder than words. Don't fidget, rock, lean, or pace.
Relax your body to communicate clearly and without distraction through nonverbal cues. Public speaking anxiety can cause tense body language.
Maintain posture and eye contact. Don’t put your hand in your pockets, cross your arms, or stare at your notes. Make purposeful hand gestures that match what you're saying.
7. Beginning/ending Strong
Beginning and end are memorable. Your presentation must start strong and end strongly. To engage your audience, don't sound robotic.
Begin with a story, stat, or quote. Conclude with a summary of key points. Focus on how you will start and end your speech.
You should memorize your presentation's opening and closing. Memorize something naturally. Excellent presentations start and end strong because people won't remember the middle.
Bringing It All Together
Seven simple yet powerful ways to improve public speaking. Know your audience, study others, prepare and rehearse, record yourself, remove as much text as possible from slides, and start and end strong.
Follow these tips to improve your speaking and audience communication. Prepare, practice, and learn from great speakers to reduce your fear of public speaking.
"Speaking to one person or a thousand is public speaking." — Vocal coach Roger Love
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