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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

Jonathan Vanian

Jonathan Vanian

3 years ago

What is Terra? Your guide to the hot cryptocurrency

With cryptocurrencies like Bitcoin, Ether, and Dogecoin gyrating in value over the past few months, many people are looking at so-called stablecoins like Terra to invest in because of their more predictable prices.

Terraform Labs, which oversees the Terra cryptocurrency project, has benefited from its rising popularity. The company said recently that investors like Arrington Capital, Lightspeed Venture Partners, and Pantera Capital have pledged $150 million to help it incubate various crypto projects that are connected to Terra.

Terraform Labs and its partners have built apps that operate on the company’s blockchain technology that helps keep a permanent and shared record of the firm’s crypto-related financial transactions.

Here’s what you need to know about Terra and the company behind it.

What is Terra?

Terra is a blockchain project developed by Terraform Labs that powers the startup’s cryptocurrencies and financial apps. These cryptocurrencies include the Terra U.S. Dollar, or UST, that is pegged to the U.S. dollar through an algorithm.

Terra is a stablecoin that is intended to reduce the volatility endemic to cryptocurrencies like Bitcoin. Some stablecoins, like Tether, are pegged to more conventional currencies, like the U.S. dollar, through cash and cash equivalents as opposed to an algorithm and associated reserve token.

To mint new UST tokens, a percentage of another digital token and reserve asset, Luna, is “burned.” If the demand for UST rises with more people using the currency, more Luna will be automatically burned and diverted to a community pool. That balancing act is supposed to help stabilize the price, to a degree.

“Luna directly benefits from the economic growth of the Terra economy, and it suffers from contractions of the Terra coin,” Terraform Labs CEO Do Kwon said.

Each time someone buys something—like an ice cream—using UST, that transaction generates a fee, similar to a credit card transaction. That fee is then distributed to people who own Luna tokens, similar to a stock dividend.

Who leads Terra?

The South Korean firm Terraform Labs was founded in 2018 by Daniel Shin and Kwon, who is now the company’s CEO. Kwon is a 29-year-old former Microsoft employee; Shin now heads the Chai online payment service, a Terra partner. Kwon said many Koreans have used the Chai service to buy goods like movie tickets using Terra cryptocurrency.

Terraform Labs does not make money from transactions using its crypto and instead relies on outside funding to operate, Kwon said. It has raised $57 million in funding from investors like HashKey Digital Asset Group, Divergence Digital Currency Fund, and Huobi Capital, according to deal-tracking service PitchBook. The amount raised is in addition to the latest $150 million funding commitment announced on July 16.

What are Terra’s plans?

Terraform Labs plans to use Terra’s blockchain and its associated cryptocurrencies—including one pegged to the Korean won—to create a digital financial system independent of major banks and fintech-app makers. So far, its main source of growth has been in Korea, where people have bought goods at stores, like coffee, using the Chai payment app that’s built on Terra’s blockchain. Kwon said the company’s associated Mirror trading app is experiencing growth in China and Thailand.

Meanwhile, Kwon said Terraform Labs would use its latest $150 million in funding to invest in groups that build financial apps on Terra’s blockchain. He likened the scouting and investing in other groups as akin to a “Y Combinator demo day type of situation,” a reference to the popular startup pitch event organized by early-stage investor Y Combinator.

The combination of all these Terra-specific financial apps shows that Terraform Labs is “almost creating a kind of bank,” said Ryan Watkins, a senior research analyst at cryptocurrency consultancy Messari.

In addition to cryptocurrencies, Terraform Labs has a number of other projects including the Anchor app, a high-yield savings account for holders of the group’s digital coins. Meanwhile, people can use the firm’s associated Mirror app to create synthetic financial assets that mimic more conventional ones, like “tokenized” representations of corporate stocks. These synthetic assets are supposed to be helpful to people like “a small retail trader in Thailand” who can more easily buy shares and “get some exposure to the upside” of stocks that they otherwise wouldn’t have been able to obtain, Kwon said. But some critics have said the U.S. Securities and Exchange Commission may eventually crack down on synthetic stocks, which are currently unregulated.

What do critics say?

Terra still has a long way to go to catch up to bigger cryptocurrency projects like Ethereum.

Most financial transactions involving Terra-related cryptocurrencies have originated in Korea, where its founders are based. Although Terra is becoming more popular in Korea thanks to rising interest in its partner Chai, it’s too early to say whether Terra-related currencies will gain traction in other countries.

Terra’s blockchain runs on a “limited number of nodes,” said Messari’s Watkins, referring to the computers that help keep the system running. That helps reduce latency that may otherwise slow processing of financial transactions, he said.

But the tradeoff is that Terra is less “decentralized” than other blockchain platforms like Ethereum, which is powered by thousands of interconnected computing nodes worldwide. That could make Terra less appealing to some blockchain purists.

Tim Denning

Tim Denning

3 years ago

The Dogecoin millionaire mysteriously disappeared.

The American who bought a meme cryptocurrency.

Cryptocurrency is the financial underground.

I love it. But there’s one thing I hate: scams. Over the last few years the Dogecoin cryptocurrency saw massive gains.

Glauber Contessoto overreacted. He shared his rags-to-riches cryptocurrency with the media.

He's only wealthy on paper. No longer Dogecoin millionaire.

Here's what he's doing now. It'll make you rethink cryptocurrency investing.

Strange beginnings

Glauber once had a $36,000-a-year job.

He grew up poor and wanted to make his mother proud. Tesla was his first investment. He bought GameStop stock after Reddit boosted it.

He bought whatever was hot.

He was a young investor. Memes, not research, influenced his decisions.

Elon Musk (aka Papa Elon) began tweeting about Dogecoin.

Doge is a 2013 cryptocurrency. One founder is Australian. He insists it's funny.

He was shocked anyone bought it LOL.

Doge is a Shiba Inu-themed meme. Now whenever I see a Shiba Inu, I think of Doge.

Elon helped drive up the price of Doge by talking about it in 2020 and 2021 (don't take investment advice from Elon; he's joking and gaslighting you).

Glauber caved. He invested everything in Doge. He borrowed from family and friends. He maxed out his credit card to buy more Doge. Yuck.

Internet dubbed him a genius. Slumdog millionaire and The Dogefather were nicknames. Elon pumped Doge on social media.

Good times.

From $180,000 to $1,000,000+

TikTok skyrocketed Doge's price.

Reddit fueled up. Influencers recommended buying Doge because of its popularity. Glauber's motto:

Scared money doesn't earn.

Glauber was no broke ass anymore.

His $180,000 Dogecoin investment became $1M. He championed investing. He quit his dumb job like a rebellious millennial.

A puppy dog meme captivated the internet.

Rise and fall

Whenever I invest in anything I ask myself “what utility does this have?”

Dogecoin is useless.

You buy it for the cute puppy face and hope others will too, driving up the price. All cryptocurrencies fell in 2021's second half.

Central banks raised interest rates, and inflation became a pain.

Dogecoin fell more than others. 90% decline.

Glauber’s Dogecoin is now worth $323K. Still no sales. His dog god is unshakeable. Confidence rocks. Dogecoin millionaire recently said...

“I should have sold some.”

Yes, sir.

He now avoids speculative cryptocurrencies like Dogecoin and focuses on Bitcoin and Ethereum.

I've long said this. Starbucks is building on Ethereum.

It's useful. Useful. Developers use Ethereum daily. Investing makes you wiser over time, like the Dogecoin millionaire.

When risk b*tch slaps you, humility follows, as it did for me when I lost money.

You have to lose money to make money. Few understand.

Dogecoin's omissions

You might be thinking Dogecoin is crap.

I'll take a contrarian stance. Dogecoin does nothing, but it has a strong community. Dogecoin dominates internet memes.

It's silly.

Not quite. The message of crypto that many people forget is that it’s a change in business model.

Businesses create products and services, then advertise to find customers. Crypto Web3 works backwards. A company builds a fanbase but sells them nothing.

Once the community reaches MVC (minimum viable community), a business can be formed.

Community members are relational versus transactional. They're invested in a cause and care about it (typically ownership in the business via crypto).

In this new world, Dogecoin has the most important feature.

Summary

While Dogecoin does have a community I still dislike it.

It's all shady. Anything Elon Musk recommends is a bad investment (except SpaceX & Tesla are great companies).

Dogecoin Millionaire has wised up and isn't YOLOing into more dog memes.

Don't follow the crowd or the hype. Investing is a long-term sport based on fundamentals and research.

Since Ethereum's inception, I've spent 10,000 hours researching.

Dogecoin will be the foundation of something new, like Pets.com at the start of the dot-com revolution. But I doubt Doge will boom.

Be safe!

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.

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Edward Williams

Edward Williams

3 years ago

I currently manage 4 profitable online companies. I find all the generic advice and garbage courses very frustrating. The only advice you need is this.

A man playing chess.

This is for young entrepreneurs, especially in tech.

People give useless success advice on TikTok and Reddit. Early risers, bookworms, etc. Entrepreneurship courses. Work hard and hustle.

False. These aren't successful traits.

I mean, organization is good. As someone who founded several businesses and now works at a VC firm, I find these tips to be clichés.

Based on founding four successful businesses and working with other successful firms, here's my best actionable advice:

1. Choose a sector or a niche and become an expert in it.

This is more generic than my next tip, but it's a must-do that's often overlooked. Become an expert in the industry or niche you want to enter. Discover everything.

Buy (future) competitors' products. Understand consumers' pain points. Market-test. Target keyword combos. Learn technical details.

The most successful businesses I've worked with were all formed by 9-5 employees. They knew the industry's pain points. They started a business targeting these pain points.

2. Choose a niche or industry crossroads to target.

How do you choose an industry or niche? What if your industry is too competitive?

List your skills and hobbies. Randomness is fine. Find an intersection between two interests or skills.

Say you build websites well. You like cars.

Web design is a *very* competitive industry. Cars and web design?

Instead of web design, target car dealers and mechanics. Build a few fake demo auto mechanic websites, then cold call shops with poor websites. Verticalize.

I've noticed a pattern:

  • Person works in a particular industry for a corporation.

  • Person gains expertise in the relevant industry.

  • Person quits their job and launches a small business to address a problem that their former employer was unwilling to address.

I originally posted this on Reddit and it seemed to have taken off so I decided to share it with you all.

Focus on the product. When someone buys from you, you convince them the product's value exceeds the price. It's not fair and favors the buyer.

Creating a superior product or service will win. Narrowing this helps you outcompete others.

You may be their only (lucky) option.

Ossiana Tepfenhart

Ossiana Tepfenhart

3 years ago

Has anyone noticed what an absolute shitshow LinkedIn is?

After viewing its insanity, I had to leave this platform.

Photo by Greg Bulla on Unsplash

I joined LinkedIn recently. That's how I aim to increase my readership and gain recognition. LinkedIn's premise appealed to me: a Facebook-like platform for professional networking.

I don't use Facebook since it's full of propaganda. It seems like a professional, apolitical space, right?

I expected people to:

  • be more formal and respectful than on Facebook.

  • Talk about the inclusiveness of the workplace. Studies consistently demonstrate that inclusive, progressive workplaces outperform those that adhere to established practices.

  • Talk about business in their industry. Yep. I wanted to read articles with advice on how to write better and reach a wider audience.

Oh, sh*t. I hadn't anticipated that.

Photo by Bernard Hermant on Unsplash

After posting and reading about inclusivity and pro-choice, I was startled by how many professionals acted unprofessionally. I've seen:

  • Men have approached me in the DMs in a really aggressive manner. Yikes. huge yikes Not at all professional.

  • I've heard pro-choice women referred to as infant killers by many people. If I were the CEO of a company and I witnessed one of my employees acting that poorly, I would immediately fire them.

  • Many posts are anti-LGBTQIA+, as I've noticed. a lot, like, a lot. Some are subtly stating that the world doesn't need to know, while others are openly making fun of transgender persons like myself.

  • Several medical professionals were posting explicitly racist comments. Even if you are as white as a sheet like me, you should be alarmed by this. Who's to guarantee a patient who is black won't unintentionally die?

  • I won't even get into how many men in STEM I observed pushing for the exclusion of women from their fields. I shouldn't be surprised considering the majority of those men I've encountered have a passionate dislike for women, but goddamn, dude.

Many people appear entirely too at ease displaying their bigotry on their professional profiles.

Photo by Jon Tyson on Unsplash

As a white female, I'm always shocked by people's open hostility. Professional environments are very important.

I don't know if this is still true (people seem too politicized to care), but if I heard many of these statements in person, I'd suppose they feel ashamed. Really.

Are you not ashamed of being so mean? Are you so weak that competing with others terrifies you? Isn't this embarrassing?

LinkedIn isn't great at censoring offensive comments. These people aren't getting warnings. So they were safe while others were unsafe.

The CEO in me would want to know if I had placed a bigot on my staff.

Photo by Romain V on Unsplash

I always wondered if people's employers knew about their online behavior. If they know how horrible they appear, they don't care.

As a manager, I was picky about hiring. Obviously. In most industries, it costs $1,000 or more to hire a full-time employee, so be sure it pays off.

Companies that embrace diversity and tolerance (and are intolerant of intolerance) are more profitable, likely to recruit top personnel, and successful.

People avoid businesses that alienate them. That's why I don't eat at Chic-Fil-A and why folks avoid MyPillow. Being inclusive is good business.

CEOs are harmed by online bigots. Image is an issue. If you're a business owner, you can fire staff who don't help you.

On the one hand, I'm delighted it makes it simpler to identify those with whom not to do business.

Photo by Tim Mossholder on Unsplash

Don’t get me wrong. I'm glad I know who to avoid when hiring, getting references, or searching for a job. When people are bad, it saves me time.

What's up with professionalism?

Really. I need to know. I've crossed the boundary between acceptable and unacceptable behavior, but never on a professional platform. I got in trouble for not wearing bras even though it's not part of my gender expression.

If I behaved like that at my last two office jobs, my supervisors would have fired me immediately. Some of the behavior I've seen is so outrageous, I can't believe these people have employment. Some are even leaders.

Like…how? Is hatred now normalized?

Please pay attention whether you're seeking for a job or even simply a side gig.

Photo by Greg Bulla on Unsplash

Do not add to the tragedy that LinkedIn comments can be, or at least don't make uninformed comments. Even if you weren't banned, the site may still bite you.

Recruiters can and do look at your activity. Your writing goes on your résumé. The wrong comment might lose you a job.

Recruiters and CEOs might reject candidates whose principles contradict with their corporate culture. Bigotry will get you banned from many companies, especially if others report you.

If you want a high-paying job, avoid being a LinkedIn asshole. People care even if you think no one does. Before speaking, ponder. Is this how you want to be perceived?

Better advice:

If your politics might turn off an employer, stop posting about them online and ask yourself why you hold such objectionable ideas.

Enrique Dans

Enrique Dans

2 years ago

What happens when those without morals enter the economic world?

IMAGE: Gerd Altmann — Pixabay

I apologize if this sounds basic, but throughout my career, I've always been clear that a company's activities are shaped by its founder(s)' morality.

I consider Palantir, owned by PayPal founder Peter Thiel, evil. He got $5 billion tax-free by hacking a statute to help middle-class savings. That may appear clever, but I think it demonstrates a shocking lack of solidarity with society. As a result of this and other things he has said and done, I early on dismissed Peter Thiel as someone who could contribute anything positive to society, and events soon proved me right: we are talking about someone who clearly considers himself above everyone else and who does not hesitate to set up a company, Palantir, to exploit the data of the little people and sell it to the highest bidder, whoever that is and whatever the consequences.

The German courts have confirmed my warnings concerning Palantir. The problem is that politicians love its surveillance tools because they think knowing more about their constituents gives them power. These are ideal for dictatorships who want to snoop on their populace. Hence, Silicon Valley's triumphalist dialectic has seduced many governments at many levels and collected massive volumes of data to hold forever.

Dangerous company. There are many more. My analysis of the moral principles that disclose company management changed my opinion of Facebook, now Meta, and anyone with a modicum of interest might deduce when that happened, a discovery that leaves you dumbfounded. TikTok was easy because its lack of morality was revealed early when I saw the videos it encouraged minors to post and the repercussions of sharing them through its content recommendation algorithm. When you see something like this, nothing can convince you that the firm can change its morals and become good. Nothing. You know the company is awful and will fail. Speak it, announce it, and change it. It's like a fingerprint—unchangeable.

Some of you who read me frequently make its Facebook today jokes when I write about these firms, and that's fine: they're my moral standards, those of an elderly professor with thirty-five years of experience studying corporations and discussing their cases in class, but you don't have to share them. Since I'm writing this and don't have to submit to any editorial review, that's what it is: when you continuously read a person, you have to assume that they have moral standards and that sometimes you'll agree with them and sometimes you won't. Morality accepts hierarchies, nuances, and even obsessions. I know not everyone shares my opinions, but at least I can voice them. One day, one of those firms may sue me (as record companies did some years ago).

Palantir is incredibly harmful. Limit its operations. Like Meta and TikTok, its business strategy is shaped by its founders' immorality. Such a procedure can never be beneficial.