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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.

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CyberPunkMetalHead

CyberPunkMetalHead

3 years ago

195 countries want Terra Luna founder Do Kwon

Interpol has issued a red alert on Terraform Labs' CEO, South Korean prosecutors said.

After the May crash of Terra Luna revealed tax evasion issues, South Korean officials filed an arrest warrant for Do Kwon, but he is missing.

Do Kwon is now a fugitive in 195 countries after Seoul prosecutors placed him to Interpol's red list. Do Kwon hasn't commented since then. The red list allows any country's local authorities to apprehend Do Kwon.

Do Dwon and Terraform Labs were believed to have moved to Singapore days before the $40 billion wipeout, but Singapore authorities said he fled the country on September 17. Do Kwon tweeted that he wasn't on the run and cited privacy concerns.

Do Kwon was not on the red list at the time and said he wasn't "running," only to reply to his own tweet saying he hasn't jogged in a while and needed to trim calories.

Whether or not it makes sense to read too much into this, the reality is that Do Kwon is now on Interpol red list, despite the firmly asserts on twitter that he does absolutely nothing to hide.

UPDATE:

South Korean authorities are investigating alleged withdrawals of over $60 million U.S. and seeking to freeze these assets. Korean authorities believe a new wallet exchanged over 3000 BTC through OKX and Kucoin.

Do Kwon and the Luna Foundation Guard (of whom Do Kwon is a key member of) have declined all charges and dubbed this disinformation.

Singapore's Luna Foundation Guard (LFG) manages the Terra Ecosystem.

The Legal Situation

Multiple governments are searching for Do Kwon and five other Terraform Labs employees for financial markets legislation crimes.

South Korean authorities arrested a man suspected of tax fraud and Ponzi scheme.

The U.S. SEC is also examining Terraform Labs on how UST was advertised as a stablecoin. No legal precedent exists, so it's unclear what's illegal.

The future of Terraform Labs, Terra, and Terra 2 is unknown, and despite what Twitter shills say about LUNC, the company remains in limbo awaiting a decision that will determine its fate. This project isn't a wise investment.

forkast

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.

Jeff John Roberts

Jeff John Roberts

3 years ago

Jack Dorsey and  Jay-Z Launch 'Bitcoin Academy' in Brooklyn rapper's home

The new Bitcoin Academy will teach Jay-Marcy Z's Houses neighbors "What is Cryptocurrency."
Jay-Z grew up in Brooklyn's Marcy Houses. The rapper and Block CEO Jack Dorsey are giving back to his hometown by creating the Bitcoin Academy.

The Bitcoin Academy will offer online and in-person classes, including "What is Money?" and "What is Blockchain?"
The program will provide participants with a mobile hotspot and a small amount of Bitcoin for hands-on learning.

Students will receive dinner and two evenings of instruction until early September. The Shawn Carter Foundation will help with on-the-ground instruction.

Jay-Z and Dorsey announced the program Thursday morning. It will begin at Marcy Houses but may be expanded.

Crypto Blockchain Plug and Black Bitcoin Billionaire, which has received a grant from Block, will teach the classes.

Jay-Z, Dorsey reunite

Jay-Z and Dorsey have previously worked together to promote a Bitcoin and crypto-based future.

In 2021, Dorsey's Block (then Square) acquired the rapper's streaming music service Tidal, which they propose using for NFT distribution.

Dorsey and Jay-Z launched an endowment in 2021 to fund Bitcoin development in Africa and India.

Dorsey is funding the new Bitcoin Academy out of his own pocket (as is Jay-Z), but he's also pushed crypto-related charitable endeavors at Block, including a $5 million fund backed by corporate Bitcoin interest.


This post is a summary. Read full article here

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Victoria Kurichenko

Victoria Kurichenko

3 years ago

What Happened After I Posted an AI-Generated Post on My Website

This could cost you.

Image credit: istockphoto

Content creators may have heard about Google's "Helpful content upgrade."

This change is another Google effort to remove low-quality, repetitive, and AI-generated content.

Why should content creators care?

Because too much content manipulates search results.

My experience includes the following.

Website admins seek high-quality guest posts from me. They send me AI-generated text after I say "yes." My readers are irrelevant. Backlinks are needed.

Companies copy high-ranking content to boost their Google rankings. Unfortunately, it's common.

What does this content offer?

Nothing.

Despite Google's updates and efforts to clean search results, webmasters create manipulative content.

As a marketer, I knew about AI-powered content generation tools. However, I've never tried them.

I use old-fashioned content creation methods to grow my website from 0 to 3,000 monthly views in one year.

Last year, I launched a niche website.

I do keyword research, analyze search intent and competitors' content, write an article, proofread it, and then optimize it.

This strategy is time-consuming.

But it yields results!

Here's proof from Google Analytics:

Traffic report August 2021 — August 2022

Proven strategies yield promising results.

To validate my assumptions and find new strategies, I run many experiments.

I tested an AI-powered content generator.

I used a tool to write this Google-optimized article about SEO for startups.

I wanted to analyze AI-generated content's Google performance.

Here are the outcomes of my test.

First, quality.

I dislike "meh" content. I expect articles to answer my questions. If not, I've wasted my time.

My essays usually include research, personal anecdotes, and what I accomplished and achieved.

AI-generated articles aren't as good because they lack individuality.

Read my AI-generated article about startup SEO to see what I mean.

An excerpt from my AI-generated article.

It's dry and shallow, IMO.

It seems robotic.

I'd use quotes and personal experience to show how SEO for startups is different.

My article paraphrases top-ranked articles on a certain topic.

It's readable but useless. Similar articles abound online. Why read it?

AI-generated content is low-quality.

Let me show you how this content ranks on Google.

The Google Search Console report shows impressions, clicks, and average position.

The AI-generated article performance

Low numbers.

No one opens the 5th Google search result page to read the article. Too far!

You may say the new article will improve.

Marketing-wise, I doubt it.

This article is shorter and less comprehensive than top-ranking pages. It's unlikely to win because of this.

AI-generated content's terrible reality.

I'll compare how this content I wrote for readers and SEO performs.

Both the AI and my article are fresh, but trends are emerging.

Here is how my article written with SEO and users in mind, performs

My article's CTR and average position are higher.

I spent a week researching and producing that piece, unlike AI-generated content. My expert perspective and unique consequences make it interesting to read.

Human-made.

In summary

No content generator can duplicate a human's tone, writing style, or creativity. Artificial content is always inferior.

Not "bad," but inferior.

Demand for content production tools will rise despite Google's efforts to eradicate thin content.

Most won't spend hours producing link-building articles. Costly.

As guest and sponsored posts, artificial content will thrive.

Before accepting a new arrangement, content creators and website owners should consider this.

Liz Martin

Liz Martin

3 years ago

A Search Engine From Apple?

Apple's search engine has long been rumored. Recent Google developments may confirm the rumor. Is Apple about to become Google's biggest rival?

Here's a video:

People noted Apple's changes in 2020. AppleBot, a web crawler that downloads and caches Internet content, was more active than in the last five years.

Apple hired search engine developers, including ex-Googlers, such as John Giannandrea, Google's former search chief.

Apple also changed the way iPhones search. With iOS 14, Apple's search results arrived before Google's.

These facts fueled rumors that Apple was developing a search engine.

Apple and Google Have a Contract

Many skeptics said Apple couldn't compete with Google. This didn't affect the company's competitiveness.

Apple is the only business with the resources and scale to be a Google rival, with 1.8 billion active devices and a $2 trillion market cap.

Still, people doubted that due to a license deal. Google pays Apple $8 to $12 billion annually to be the default iPhone and iPad search engine.

Apple can't build an independent search product under this arrangement.

Why would Apple enter search if it's being paid to stay out?

Ironically, this partnership has many people believing Apple is getting into search.

A New Default Search Engine May Be Needed

Google was sued for antitrust in 2020. It is accused of anticompetitive and exclusionary behavior. Justice wants to end Google's monopoly.

Authorities could restrict Apple and Google's licensing deal due to its likely effect on market competitiveness. Hence Apple needs a new default search engine.

Apple Already Has a Search Engine

The company already has a search engine, Spotlight.

Since 2004, Spotlight has aired. It was developed to help users find photos, documents, apps, music, and system preferences.

Apple's search engine could do more than organize files, texts, and apps.

Spotlight Search was updated in 2014 with iOS 8. Web, App Store, and iTunes searches became available. You could find nearby places, movie showtimes, and news.

This search engine has subsequently been updated and improved. Spotlight added rich search results last year.

If you search for a TV show, movie, or song, photos and carousels will appear at the top of the page.

This resembles Google's rich search results.

When Will the Apple Search Engine Be Available?

When will Apple's search launch? Robert Scoble says it's near.

Scoble tweeted a number of hints before this year's Worldwide Developer Conference.

Scoble bases his prediction on insider information and deductive reasoning. January 2023 is expected.

Will you use Apple's search engine?

Rachel Greenberg

Rachel Greenberg

3 years ago

The Unsettling Fact VC-Backed Entrepreneurs Don't Want You to Know

What they'll do is scarier.

Photo by DESIGNECOLOGIST on Unsplash

My acquaintance recently joined a VC-funded startup. Money, equity, and upside possibilities were nice, but he had a nagging dread.

They just secured a $40M round and are hiring like crazy to prepare for their IPO in two years. All signals pointed to this startup's (a B2B IT business in a stable industry) success, and its equity-holding workers wouldn't pass that up.

Five months after starting the work, my friend struggled with leaving. We might overlook the awful culture and long hours at the proper price. This price plus the company's fate and survival abilities sent my friend departing in an unpleasant unplanned resignation before jumping on yet another sinking ship.

This affects founders. This affects VC-backed companies (and all businesses). This affects anyone starting, buying, or running a business.

Here's the under-the-table approach that's draining VC capital, leaving staff terrified (or jobless), founders rattled, and investors upset. How to recognize, solve, and avoid it

The unsettling reality behind door #1

You can't raise money off just your looks, right? If "looks" means your founding team's expertise, then maybe. In my friend's case, the founding team's strong qualifications and track records won over investors before talking figures.

They're hardly the only startup to raise money without a profitable customer acquisition strategy. Another firm raised money for an expensive sleep product because it's eco-friendly. They were off to the races with a few keywords and key players.

Both companies, along with numerous others, elected to invest on product development first. Company A employed all the tech, then courted half their market (they’re a tech marketplace that connects two parties). Company B spent millions on R&D to create a palatable product, then flooded the world with marketing.

My friend is on Company B's financial team, and he's seen where they've gone wrong. It's terrible.

Company A (tech market): Growing? Not quite. To achieve the ambitious expansion they (and their investors) demand, they've poured much of their little capital into salespeople: Cold-calling commission and salary salesmen. Is it working? Considering attrition and companies' dwindling capital, I don't think so.

Company B (green sleep) has been hiring, digital marketing, and opening new stores like crazy. Growing expenses should result in growing revenues and a favorable return on investment; if you grow too rapidly, you may neglect to check that ROI.

Once Company A cut headcount and Company B declared “going concerned”, my friend realized both startups had the same ailment and didn't recognize it.

I shouldn't have to ask a friend to verify a company's cash reserves and profitability to spot a financial problem. It happened anyhow.

The frightening part isn't that investors were willing to invest millions without product-market fit, CAC, or LTV estimates. That's alarming, but not as scary as the fact that startups aren't understanding the problem until VC rounds have dried up.

When they question consultants if their company will be around in 6 months. It’s a red flag. How will they stretch $20M through a 2-year recession with a $3M/month burn rate and no profitability? Alarms go off.

Who's in danger?

In a word, everyone who raised money without a profitable client acquisition strategy or enough resources to ride out dry spells.

Money mismanagement and poor priorities affect every industry (like sinking all your capital into your product, team, or tech, at the expense of probing what customer acquisition really takes and looks like).

This isn't about tech, real estate, or recession-proof luxury products. Fast, cheap, easy money flows into flashy-looking teams with buzzwords, trending industries, and attractive credentials.

If these companies can't show progress or get a profitable CAC, they can't raise more money. They die if they can't raise more money (or slash headcount and find shoestring budget solutions until they solve the real problem).

The kiss of death (and how to avoid it)

If you're running a startup and think raising VC is the answer, pause and evaluate. Do you need the money now?

I'm not saying VC is terrible or has no role. Founders have used it as a Band-Aid for larger, pervasive problems. Venture cash isn't a crutch for recruiting consumers profitably; it's rocket fuel to get you what and who you need.

Pay-to-play isn't a way to throw money at the wall and hope for a return. Pay-to-play works until you run out of money, and if you haven't mastered client acquisition, your cash will diminish quickly.

How can you avoid this bottomless pit? Tips:

  • Understand your burn rate

  • Keep an eye on your growth or profitability.

  • Analyze each and every marketing channel and initiative.

  • Make lucrative customer acquisition strategies and satisfied customers your top two priorities. not brand-new products. not stellar hires. avoid the fundraising rollercoaster to save time. If you succeed in these two tasks, investors will approach you with their thirsty offers rather than the other way around, and your cash reserves won't diminish as a result.

Not as much as your grandfather

My family friend always justified expensive, impractical expenditures by saying it was only monopoly money. In business, startups, and especially with money from investors expecting a return, that's not true.

More founders could understand that there isn't always another round if they viewed VC money as their own limited pool. When the well runs dry, you must refill it or save the day.

Venture financing isn't your grandpa's money. A discerning investor has entrusted you with dry powder in the hope that you'll use it wisely, strategically, and thoughtfully. Use it well.