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Nathan Reiff

Nathan Reiff

3 years ago

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:

  1. An investment of money
  2. n a common enterprise
  3. With the expectation of profit
  4. 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

rekt

rekt

3 years ago

LCX is the latest CEX to have suffered a private key exploit.

The attack began around 10:30 PM +UTC on January 8th.

Peckshield spotted it first, then an official announcement came shortly after.

We’ve said it before; if established companies holding millions of dollars of users’ funds can’t manage their own hot wallet security, what purpose do they serve?

The Unique Selling Proposition (USP) of centralised finance grows smaller by the day.

The official incident report states that 7.94M USD were stolen in total, and that deposits and withdrawals to the platform have been paused.

LCX hot wallet: 0x4631018f63d5e31680fb53c11c9e1b11f1503e6f

Hacker’s wallet: 0x165402279f2c081c54b00f0e08812f3fd4560a05

Stolen funds:

  • 162.68 ETH (502,671 USD)
  • 3,437,783.23 USDC (3,437,783 USD)
  • 761,236.94 EURe (864,840 USD)
  • 101,249.71 SAND Token (485,995 USD)
  • 1,847.65 LINK (48,557 USD)
  • 17,251,192.30 LCX Token (2,466,558 USD)
  • 669.00 QNT (115,609 USD)
  • 4,819.74 ENJ (10,890 USD)
  • 4.76 MKR (9,885 USD)

**~$1M worth of $LCX remains in the address, along with 611k EURe which has been frozen by Monerium.

The rest, a total of 1891 ETH (~$6M) was sent to Tornado Cash.**

Why can’t they keep private keys private?

Is it really that difficult for a traditional corporate structure to maintain good practice?

CeFi hacks leave us with little to say - we can only go on what the team chooses to tell us.

Next time, they can write this article themselves.

See below for a template.

Chris

Chris

2 years ago

What the World's Most Intelligent Investor Recently Said About Crypto

Cryptoshit. This thing is crazy to buy.

Sloww

Charlie Munger is revered and powerful in finance.

Munger, vice chairman of Berkshire Hathaway, is noted for his wit, no-nonsense attitude to investment, and ability to spot promising firms and markets.

Munger's crypto views have upset some despite his reputation as a straight shooter.

“There’s only one correct answer for intelligent people, just totally avoid all the people that are promoting it.” — Charlie Munger

The Munger Interview on CNBC (4:48 secs)

This Monday, CNBC co-anchor Rebecca Quick interviewed Munger and brought up his 2007 statement, "I'm not allowed to have an opinion on this subject until I can present the arguments against my viewpoint better than the folks who are supporting it."

Great investing and life advice!

If you can't explain the opposing reasons, you're not informed enough to have an opinion.

In today's world, it's important to grasp both sides of a debate before supporting one.

Rebecca inquired:

Does your Wall Street Journal article on banning cryptocurrency apply? If so, would you like to present the counterarguments?

Mungers reply:

I don't see any viable counterarguments. I think my opponents are idiots, hence there is no sensible argument against my position.

Consider his words.

Do you believe Munger has studied both sides?

He said, "I assume my opponents are idiots, thus there is no sensible argument against my position."

This is worrisome, especially from a guy who once encouraged studying both sides before forming an opinion.

Munger said:

National currencies have benefitted humanity more than almost anything else.

Hang on, I think we located the perpetrator.

Munger thinks crypto will replace currencies.

False.

I doubt he studied cryptocurrencies because the name is deceptive.

He misread a headline as a Dollar destroyer.

Cryptocurrencies are speculations.

Like Tesla, Amazon, Apple, Google, Microsoft, etc.

Crypto won't replace dollars.

In the interview with CNBC, Munger continued:

“I’m not proud of my country for allowing this crap, what I call the cryptoshit. It’s worthless, it’s no good, it’s crazy, it’ll do nothing but harm, it’s anti-social to allow it.” — Charlie Munger

Not entirely inaccurate.

Daily cryptos are established solely to pump and dump regular investors.

Let's get into Munger's crypto aversion.

Rat poison is bitcoin.

Munger famously dubbed Bitcoin rat poison and a speculative bubble that would implode.

Partially.

But the bubble broke. Since 2021, the market has fallen.

Scam currencies and NFTs are being eliminated, which I like.

Whoa.

Why does Munger doubt crypto?

Mungers thinks cryptocurrencies has no intrinsic value.

He worries about crypto fraud and money laundering.

Both are valid issues.

Yet grouping crypto is intellectually dishonest.

Ethereum, Bitcoin, Solana, Chainlink, Flow, and Dogecoin have different purposes and values (not saying they’re all good investments).

Fraudsters who hurt innocents will be punished.

Therefore, complaining is useless.

Why not stop it? Repair rather than complain.

Regrettably, individuals today don't offer solutions.

Blind Areas for Mungers

As with everyone, Mungers' bitcoin views may be impacted by his biases and experiences.

OK.

But Munger has always advocated classic value investing and may be wary of investing in an asset outside his expertise.

Mungers' banking and insurance investments may influence his bitcoin views.

Could a coworker or acquaintance have told him crypto is bad and goes against traditional finance?

Right?

Takeaways

Do you respect Charlie Mungers?

Yes and no, like any investor or individual.

To understand Mungers' bitcoin beliefs, you must be critical.

Mungers is a successful investor, but his views about bitcoin should be considered alongside other viewpoints.

Munger’s success as an investor has made him an influencer in the space.

Influence gives power.

He controls people's thoughts.

Munger's ok. He will always be heard.

I'll do so cautiously.

Nitin Sharma

Nitin Sharma

2 years ago

Web3 Terminology You Should Know

The easiest online explanation.

Photo by Hammer & Tusk on Unsplash

Web3 is growing. Crypto companies are growing.

Instagram, Adidas, and Stripe adopted cryptocurrency.

Source: Polygon

Bitcoin and other cryptocurrencies made web3 famous.

Most don't know where to start. Cryptocurrency, DeFi, etc. are investments.

Since we don't understand web3, I'll help you today.

Let’s go.

1. Web3

It is the third generation of the web, and it is built on the decentralization idea which means no one can control it.

There are static webpages that we can only read on the first generation of the web (i.e. Web 1.0).

Web 2.0 websites are interactive. Twitter, Medium, and YouTube.

Each generation controlled the website owner. Simply put, the owner can block us. However, data breaches and selling user data to other companies are issues.

They can influence the audience's mind since they have control.

Assume Twitter's CEO endorses Donald Trump. Result? Twitter would have promoted Donald Trump with tweets and graphics, enhancing his chances of winning.

We need a decentralized, uncontrollable system.

And then there’s Web3.0 to consider. As Bitcoin and Ethereum values climb, so has its popularity. Web3.0 is uncontrolled web evolution. It's good and bad.

Dapps, DeFi, and DAOs are here. It'll all be explained afterwards.

2. Cryptocurrencies:

No need to elaborate.

Bitcoin, Ethereum, Cardano, and Dogecoin are cryptocurrencies. It's digital money used for payments and other uses.

Programs must interact with cryptocurrencies.

3. Blockchain:

Blockchain facilitates bitcoin transactions, investments, and earnings.

This technology governs Web3. It underpins the web3 environment.

Let us delve much deeper.

Blockchain is simple. However, the name expresses the meaning.

Blockchain is a chain of blocks.

Let's use an image if you don't understand.

The graphic above explains blockchain. Think Blockchain. The block stores related data.

Here's more.

4. Smart contracts

Programmers and developers must write programs. Smart contracts are these blockchain apps.

That’s reasonable.

Decentralized web3.0 requires immutable smart contracts or programs.

5. NFTs

Blockchain art is NFT. Non-Fungible Tokens.

Explaining Non-Fungible Token may help.

Two sorts of tokens:

  1. These tokens are fungible, meaning they can be changed. Think of Bitcoin or cash. The token won't change if you sell one Bitcoin and acquire another.

  2. Non-Fungible Token: Since these tokens cannot be exchanged, they are exclusive. For instance, music, painting, and so forth.

Right now, Companies and even individuals are currently developing worthless NFTs.

The concept of NFTs is much improved when properly handled.

6. Dapp

Decentralized apps are Dapps. Instagram, Twitter, and Medium apps in the same way that there is a lot of decentralized blockchain app.

Curve, Yearn Finance, OpenSea, Axie Infinity, etc. are dapps.

7. DAOs

DAOs are member-owned and governed.

Consider it a company with a core group of contributors.

8. DeFi

We all utilize centrally regulated financial services. We fund these banks.

If you have $10,000 in your bank account, the bank can invest it and retain the majority of the profits.

We only get a penny back. Some banks offer poor returns. To secure a loan, we must trust the bank, divulge our information, and fill out lots of paperwork.

DeFi was built for such issues.

Decentralized banks are uncontrolled. Staking, liquidity, yield farming, and more can earn you money.

Web3 beginners should start with these resources.

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Jenn Leach

Jenn Leach

3 years ago

In November, I made an effort to pitch 10 brands per day. Here's what I discovered.

Photo by Nubelson Fernandes on Unsplash

I pitched 10 brands per workday for a total of 200.

How did I do?

It was difficult.

I've never pitched so much.

What did this challenge teach me?

  • the superiority of quality over quantity

  • When you need help, outsource

  • Don't disregard burnout in order to complete a challenge because it exists.

First, pitching brands for brand deals requires quality. Find firms that align with your brand to expose to your audience.

If you associate with any company, you'll lose audience loyalty. I didn't lose sight of that, but I couldn't resist finishing the task.

Outsourcing.

Delegating work to teammates is effective.

I wish I'd done it.

Three people can pitch 200 companies a month significantly faster than one.

One person does research, one to two do outreach, and one to two do follow-up and negotiating.

Simple.

In 2022, I'll outsource everything.

Burnout.

I felt this, so I slowed down at the end of the month.

Thanksgiving week in November was slow.

I was buying and decorating for Christmas. First time putting up outdoor holiday lights was fun.

Much was happening.

I'm not perfect.

I'm being honest.

The Outcomes

Less than 50 brands pitched.

Result: A deal with 3 brands.

I hoped for 4 brands with reaching out to 200 companies, so three with under 50 is wonderful.

That’s a 6% conversion rate!

Whoo-hoo!

I needed 2%.

Here's a screenshot from one of the deals I booked.

These companies fit my company well. Each campaign is different, but I've booked $2,450 in brand work with a couple of pending transactions for December and January.

$2,450 in brand work booked!

How did I do? You tell me.

Is this something you’d try yourself?

Theresa W. Carey

Theresa W. Carey

3 years ago

How Payment for Order Flow (PFOF) Works

What is PFOF?

PFOF is a brokerage firm's compensation for directing orders to different parties for trade execution. The brokerage firm receives fractions of a penny per share for directing the order to a market maker.

Each optionable stock could have thousands of contracts, so market makers dominate options trades. Order flow payments average less than $0.50 per option contract.

Order Flow Payments (PFOF) Explained

The proliferation of exchanges and electronic communication networks has complicated equity and options trading (ECNs) Ironically, Bernard Madoff, the Ponzi schemer, pioneered pay-for-order-flow.

In a December 2000 study on PFOF, the SEC said, "Payment for order flow is a method of transferring trading profits from market making to brokers who route customer orders to specialists for execution."

Given the complexity of trading thousands of stocks on multiple exchanges, market making has grown. Market makers are large firms that specialize in a set of stocks and options, maintaining an inventory of shares and contracts for buyers and sellers. Market makers are paid the bid-ask spread. Spreads have narrowed since 2001, when exchanges switched to decimals. A market maker's ability to play both sides of trades is key to profitability.

Benefits, requirements

A broker receives fees from a third party for order flow, sometimes without a client's knowledge. This invites conflicts of interest and criticism. Regulation NMS from 2005 requires brokers to disclose their policies and financial relationships with market makers.

Your broker must tell you if it's paid to send your orders to specific parties. This must be done at account opening and annually. The firm must disclose whether it participates in payment-for-order-flow and, upon request, every paid order. Brokerage clients can request payment data on specific transactions, but the response takes weeks.

Order flow payments save money. Smaller brokerage firms can benefit from routing orders through market makers and getting paid. This allows brokerage firms to send their orders to another firm to be executed with other orders, reducing costs. The market maker or exchange benefits from additional share volume, so it pays brokerage firms to direct traffic.

Retail investors, who lack bargaining power, may benefit from order-filling competition. Arrangements to steer the business in one direction invite wrongdoing, which can erode investor confidence in financial markets and their players.

Pay-for-order-flow criticism

It has always been controversial. Several firms offering zero-commission trades in the late 1990s routed orders to untrustworthy market makers. During the end of fractional pricing, the smallest stock spread was $0.125. Options spreads widened. Traders found that some of their "free" trades cost them a lot because they weren't getting the best price.

The SEC then studied the issue, focusing on options trades, and nearly decided to ban PFOF. The proliferation of options exchanges narrowed spreads because there was more competition for executing orders. Options market makers said their services provided liquidity. In its conclusion, the report said, "While increased multiple-listing produced immediate economic benefits to investors in the form of narrower quotes and effective spreads, these improvements have been muted with the spread of payment for order flow and internalization." 

The SEC allowed payment for order flow to continue to prevent exchanges from gaining monopoly power. What would happen to trades if the practice was outlawed was also unclear. SEC requires brokers to disclose financial arrangements with market makers. Since then, the SEC has watched closely.

2020 Order Flow Payment

Rule 605 and Rule 606 show execution quality and order flow payment statistics on a broker's website. Despite being required by the SEC, these reports can be hard to find. The SEC mandated these reports in 2005, but the format and reporting requirements have changed over the years, most recently in 2018.

Brokers and market makers formed a working group with the Financial Information Forum (FIF) to standardize order execution quality reporting. Only one retail brokerage (Fidelity) and one market maker remain (Two Sigma Securities). FIF notes that the 605/606 reports "do not provide the level of information that allows a retail investor to gauge how well a broker-dealer fills a retail order compared to the NBBO (national best bid or offer’) at the time the order was received by the executing broker-dealer."

In the first quarter of 2020, Rule 606 reporting changed to require brokers to report net payments from market makers for S&P 500 and non-S&P 500 equity trades and options trades. Brokers must disclose payment rates per 100 shares by order type (market orders, marketable limit orders, non-marketable limit orders, and other orders).

Richard Repetto, Managing Director of New York-based Piper Sandler & Co., publishes a report on Rule 606 broker reports. Repetto focused on Charles Schwab, TD Ameritrade, E-TRADE, and Robinhood in Q2 2020. Repetto reported that payment for order flow was higher in the second quarter than the first due to increased trading activity, and that options paid more than equities.

Repetto says PFOF contributions rose overall. Schwab has the lowest options rates, while TD Ameritrade and Robinhood have the highest. Robinhood had the highest equity rating. Repetto assumes Robinhood's ability to charge higher PFOF reflects their order flow profitability and that they receive a fixed rate per spread (vs. a fixed rate per share by the other brokers).

Robinhood's PFOF in equities and options grew the most quarter-over-quarter of the four brokers Piper Sandler analyzed, as did their implied volumes. All four brokers saw higher PFOF rates.

TD Ameritrade took the biggest income hit when cutting trading commissions in fall 2019, and this report shows they're trying to make up the shortfall by routing orders for additional PFOF. Robinhood refuses to disclose trading statistics using the same metrics as the rest of the industry, offering only a vague explanation on their website.

Summary

Payment for order flow has become a major source of revenue as brokers offer no-commission equity (stock and ETF) orders. For retail investors, payment for order flow poses a problem because the brokerage may route orders to a market maker for its own benefit, not the investor's.

Infrequent or small-volume traders may not notice their broker's PFOF practices. Frequent traders and those who trade larger quantities should learn about their broker's order routing system to ensure they're not losing out on price improvement due to a broker prioritizing payment for order flow.


This post is a summary. Read full article here

Matthew Royse

Matthew Royse

3 years ago

5 Tips for Concise Writing

Here's how to be clear.

I have only made this letter longer because I have not had the time to make it shorter.” — French mathematician, physicist, inventor, philosopher, and writer Blaise Pascal

Concise.

People want this. We tend to repeat ourselves and use unnecessary words.

Being vague frustrates readers. It focuses their limited attention span on figuring out what you're saying rather than your message.

Edit carefully.

Examine every word you put on paper. You’ll find a surprising number that don’t serve any purpose.” — American writer, editor, literary critic, and teacher William Zinsser

How do you write succinctly?

Here are three ways to polish your writing.

1. Delete

Your readers will appreciate it if you delete unnecessary words. If a word or phrase is essential, keep it. Don't force it.

Many readers dislike bloated sentences. Ask yourself if cutting a word or phrase will change the meaning or dilute your message.

For example, you could say, “It’s absolutely essential that I attend this meeting today, so I know the final outcome.” It’s better to say, “It’s critical I attend the meeting today, so I know the results.”

Key takeaway

Delete actually, completely, just, full, kind of, really, and totally. Keep the necessary words, cut the rest.

2. Just Do It

Don't tell readers your plans. Your readers don't need to know your plans. Who are you?

Don't say, "I want to highlight our marketing's problems." Our marketing issues are A, B, and C. This cuts 5–7 words per sentence.

Keep your reader's attention on the essentials, not the fluff. What are you doing? You won't lose readers because you get to the point quickly and don't build up.

Key takeaway

Delete words that don't add to your message. Do something, don't tell readers you will.

3. Cut Overlap

You probably repeat yourself unintentionally. You may add redundant sentences when brainstorming. Read aloud to detect overlap.

Remove repetition from your writing. It's important to edit our writing and thinking to avoid repetition.

Key Takeaway

If you're repeating yourself, combine sentences to avoid overlap.

4. Simplify

Write as you would to family or friends. Communicate clearly. Don't use jargon. These words confuse readers.

Readers want specifics, not jargon. Write simply. Done.

Most adults read at 8th-grade level. Jargon and buzzwords make speech fluffy. This confuses readers who want simple language.

Key takeaway

Ensure all audiences can understand you. USA Today's 5th-grade reading level is intentional. They want everyone to understand.

5. Active voice

Subjects perform actions in active voice. When you write in passive voice, the subject receives the action.

For example, “the board of directors decided to vote on the topic” is an active voice, while “a decision to vote on the topic was made by the board of directors” is a passive voice.

Key takeaway

Active voice clarifies sentences. Active voice is simple and concise.

Bringing It All Together

Five tips help you write clearly. Delete, just do it, cut overlap, use simple language, and write in an active voice.

Clear writing is effective. It's okay to occasionally use unnecessary words or phrases. Realizing it is key. Check your writing.

Adding words costs.

Write more concisely. People will appreciate it and read your future articles, emails, and messages. Spending extra time will increase trust and influence.

Not that the story need be long, but it will take a long while to make it short.” — Naturalist, essayist, poet, and philosopher Henry David Thoreau