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Howey Test and Cryptocurrencies: 'Every ICO Is a Security'
What Is the Howey Test?
To determine whether a transaction qualifies as a "investment contract" and thus qualifies as a security, the Howey Test refers to the U.S. Supreme Court cass: the Securities Act of 1933 and the Securities Exchange Act of 1934. According to the Howey Test, an investment contract exists when "money is invested in a common enterprise with a reasonable expectation of profits from others' efforts."
The test applies to any contract, scheme, or transaction. The Howey Test helps investors and project backers understand blockchain and digital currency projects. ICOs and certain cryptocurrencies may be found to be "investment contracts" under the test.
Understanding the Howey Test
The Howey Test comes from the 1946 Supreme Court case SEC v. W.J. Howey Co. The Howey Company sold citrus groves to Florida buyers who leased them back to Howey. The company would maintain the groves and sell the fruit for the owners. Both parties benefited. Most buyers had no farming experience and were not required to farm the land.
The SEC intervened because Howey failed to register the transactions. The court ruled that the leaseback agreements were investment contracts.
This established four criteria for determining an investment contract. Investing contract:
- An investment of money
- n a common enterprise
- With the expectation of profit
- To be derived from the efforts of others
In the case of Howey, the buyers saw the transactions as valuable because others provided the labor and expertise. An income stream was obtained by only investing capital. As a result of the Howey Test, the transaction had to be registered with the SEC.
Howey Test and Cryptocurrencies
Bitcoin is notoriously difficult to categorize. Decentralized, they evade regulation in many ways. Regardless, the SEC is looking into digital assets and determining when their sale qualifies as an investment contract.
The SEC claims that selling digital assets meets the "investment of money" test because fiat money or other digital assets are being exchanged. Like the "common enterprise" test.
Whether a digital asset qualifies as an investment contract depends on whether there is a "expectation of profit from others' efforts."
For example, buyers of digital assets may be relying on others' efforts if they expect the project's backers to build and maintain the digital network, rather than a dispersed community of unaffiliated users. Also, if the project's backers create scarcity by burning tokens, the test is met. Another way the "efforts of others" test is met is if the project's backers continue to act in a managerial role.
These are just a few examples given by the SEC. If a project's success is dependent on ongoing support from backers, the buyer of the digital asset is likely relying on "others' efforts."
Special Considerations
If the SEC determines a cryptocurrency token is a security, many issues arise. It means the SEC can decide whether a token can be sold to US investors and forces the project to register.
In 2017, the SEC ruled that selling DAO tokens for Ether violated federal securities laws. Instead of enforcing securities laws, the SEC issued a warning to the cryptocurrency industry.
Due to the Howey Test, most ICOs today are likely inaccessible to US investors. After a year of ICOs, then-SEC Chair Jay Clayton declared them all securities.
SEC Chairman Gensler Agrees With Predecessor: 'Every ICO Is a Security'
Howey Test FAQs
How Do You Determine If Something Is a Security?
The Howey Test determines whether certain transactions are "investment contracts." Securities are transactions that qualify as "investment contracts" under the Securities Act of 1933 and the Securities Exchange Act of 1934.
The Howey Test looks for a "investment of money in a common enterprise with a reasonable expectation of profits from others' efforts." If so, the Securities Act of 1933 and the Securities Exchange Act of 1934 require disclosure and registration.
Why Is Bitcoin Not a Security?
Former SEC Chair Jay Clayton clarified in June 2018 that bitcoin is not a security: "Cryptocurrencies: Replace the dollar, euro, and yen with bitcoin. That type of currency is not a security," said Clayton.
Bitcoin, which has never sought public funding to develop its technology, fails the SEC's Howey Test. However, according to Clayton, ICO tokens are securities.
A Security Defined by the SEC
In the public and private markets, securities are fungible and tradeable financial instruments. The SEC regulates public securities sales.
The Supreme Court defined a security offering in SEC v. W.J. Howey Co. In its judgment, the court defines a security using four criteria:
- An investment contract's existence
- The formation of a common enterprise
- The issuer's profit promise
- Third-party promotion of the offering
Read original post.
More on Web3 & Crypto
CyberPunkMetalHead
3 years ago
It's all about the ego with Terra 2.0.
UST depegs and LUNA crashes 99.999% in a fraction of the time it takes the Moon to orbit the Earth.
Fat Man, a Terra whistle-blower, promises to expose Do Kwon's dirty secrets and shady deals.
The Terra community has voted to relaunch Terra LUNA on a new blockchain. The Terra 2.0 Pheonix-1 blockchain went live on May 28, 2022, and people were airdropped the new LUNA, now called LUNA, while the old LUNA became LUNA Classic.
Does LUNA deserve another chance? To answer this, or at least start a conversation about the Terra 2.0 chain's advantages and limitations, we must assess its fundamentals, ideology, and long-term vision.
Whatever the result, our analysis must be thorough and ruthless. A failure of this magnitude cannot happen again, so we must magnify every potential breaking point by 10.
Will UST and LUNA holders be compensated in full?
The obvious. First, and arguably most important, is to restore previous UST and LUNA holders' bags.
Terra 2.0 has 1,000,000,000,000 tokens to distribute.
25% of a community pool
Holders of pre-attack LUNA: 35%
10% of aUST holders prior to attack
Holders of LUNA after an attack: 10%
UST holders as of the attack: 20%
Every LUNA and UST holder has been compensated according to the above proposal.
According to self-reported data, the new chain has 210.000.000 tokens and a $1.3bn marketcap. LUNC and UST alone lost $40bn. The new token must fill this gap. Since launch:
LUNA holders collectively own $1b worth of LUNA if we subtract the 25% community pool airdrop from the current market cap and assume airdropped LUNA was never sold.
At the current supply, the chain must grow 40 times to compensate holders. At the current supply, LUNA must reach $240.
LUNA needs a full-on Bull Market to make LUNC and UST holders whole.
Who knows if you'll be whole? From the time you bought to the amount and price, there are too many variables to determine if Terra can cover individual losses.
The above distribution doesn't consider individual cases. Terra didn't solve individual cases. It would have been huge.
What does LUNA offer in terms of value?
UST's marketcap peaked at $18bn, while LUNC's was $41bn. LUNC and UST drove the Terra chain's value.
After it was confirmed (again) that algorithmic stablecoins are bad, Terra 2.0 will no longer support them.
Algorithmic stablecoins contributed greatly to Terra's growth and value proposition. Terra 2.0 has no product without algorithmic stablecoins.
Terra 2.0 has an identity crisis because it has no actual product. It's like Volkswagen faking carbon emission results and then stopping car production.
A project that has already lost the trust of its users and nearly all of its value cannot survive without a clear and in-demand use case.
Do Kwon, how about him?
Oh, the Twitter-caller-poor? Who challenges crypto billionaires to break his LUNA chain? Who dissolved Terra Labs South Korea before depeg? Arrogant guy?
That's not a good image for LUNA, especially when making amends. I think he should step down and let a nicer person be Terra 2.0's frontman.
The verdict
Terra has a terrific community with an arrogant, unlikeable leader. The new LUNA chain must grow 40 times before it can start making up its losses, and even then, not everyone's losses will be covered.
I won't invest in Terra 2.0 or other algorithmic stablecoins in the near future. I won't be near any Do Kwon-related project within 100 miles. My opinion.
Can Terra 2.0 be saved? Comment below.
Rishi Dean
3 years ago
Coinbase's web3 app
Use popular Ethereum dapps with Coinbase’s new dapp wallet and browser
Tl;dr: This post highlights the ability to access web3 directly from your Coinbase app using our new dapp wallet and browser.
Decentralized autonomous organizations (DAOs) and decentralized finance (DeFi) have gained popularity in the last year (DAOs). The total value locked (TVL) of DeFi investments on the Ethereum blockchain has grown to over $110B USD, while NFTs sales have grown to over $30B USD in the last 12 months (LTM). New innovative real-world applications are emerging every day.
Today, a small group of Coinbase app users can access Ethereum-based dapps. Buying NFTs on Coinbase NFT and OpenSea, trading on Uniswap and Sushiswap, and borrowing and lending on Curve and Compound are examples.
Our new dapp wallet and dapp browser enable you to access and explore web3 directly from your Coinbase app.
Web3 in the Coinbase app
Users can now access dapps without a recovery phrase. This innovative dapp wallet experience uses Multi-Party Computation (MPC) technology to secure your on-chain wallet. This wallet's design allows you and Coinbase to share the 'key.' If you lose access to your device, the key to your dapp wallet is still safe and Coinbase can help recover it.
Set up your new dapp wallet by clicking the "Browser" tab in the Android app's navigation bar. Once set up, the Coinbase app's new dapp browser lets you search, discover, and use Ethereum-based dapps.
Looking forward
We want to enable everyone to seamlessly and safely participate in web3, and today’s launch is another step on that journey. We're rolling out the new dapp wallet and browser in the US on Android first to a small subset of users and plan to expand soon. Stay tuned!
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.
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Jenn Leach
3 years ago
In November, I made an effort to pitch 10 brands per day. Here's what I discovered.
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?
Tora Northman
3 years ago
Pixelmon NFTs are so bad, they are almost good!
Bored Apes prices continue to rise, HAPEBEAST launches, Invisible Friends hype continues to grow. Sadly, not all projects are as successful.
Of course, there are many factors to consider when buying an NFT. Is the project a scam? Will the reveal derail the project? Possibly, but when Pixelmon first teased its launch, it generated a lot of buzz.
With a primary sale mint price of 3 ETH ($8,100 USD), it started as an expensive project, with plenty of fans willing to invest in what was sold as a game. After it was revealed, it fell rapidly.
Why? It was overpromised and under delivered.
According to the project's creator[^1], the funds generated will be used to develop the artwork. "The Pixelmon reveal was wrong. This is what our Pixelmon look like in-game. "Despite the fud, I will not go anywhere," he wrote on Twitter. The goal remains. The funds will still be used to build our game. I will finish this project."
The project raised $70 million USD, but the NFTs buyers received were not the project's original teasers. Some call it "the worst NFT project ever," while others call it a complete scam.
But there's hope for some buyers. Kevin emerged from the ashes as the project was roasted over the fire.
A Minecraft character meets Salad Fingers - that's Kevin. He's a frog-like creature whose reveal was such a terrible NFT that it became part of history – and a meme.
If you're laughing at people paying $8K for a silly pixelated image, you might need to take it back. Precisely because of this, lucky holders who minted Kevin have been able to sell the now-memed NFT for over 8 ETH (around $24,000 USD), with some currently listed for 100 ETH.
Of course, Twitter has been awash in memes mocking those who invested in the project, because what else can you do when so many people lose money?
It's still unclear if the NFT project is a scam, but the team behind it was hired on Upwork. There's still hope for redemption, but Kevin's rise to fame appears to be the only positive outcome so far.
[^1] This is not the first time the creator (A 20-yo New Zealanders) has sought money via an online platform and had people claiming he under-delivered. He raised $74,000 on Kickstarter for a card game called Psycho Chicken. There are hundreds of comments on the Kickstarter project saying they haven't received the product and pleading for a refund or an update.
VIP Graphics
3 years ago
Leaked pitch deck for Metas' new influencer-focused live-streaming service
As part of Meta's endeavor to establish an interactive live-streaming platform, the company is testing with influencers.
The NPE (new product experimentation team) has been testing Super since late 2020.
Bloomberg defined Super as a Cameo-inspired FaceTime-like gadget in 2020. The tool has evolved into a Twitch-like live streaming application.
Less than 100 creators have utilized Super: Creators can request access on Meta's website. Super isn't an Instagram, Facebook, or Meta extension.
“It’s a standalone project,” the spokesperson said about Super. “Right now, it’s web only. They have been testing it very quietly for about two years. The end goal [of NPE projects] is ultimately creating the next standalone project that could be part of the Meta family of products.” The spokesperson said the outreach this week was part of a drive to get more creators to test Super.
A 2021 pitch deck from Super reveals the inner workings of Meta.
The deck gathered feedback on possible sponsorship models, with mockups of brand deals & features. Meta reportedly paid creators $200 to $3,000 to test Super for 30 minutes.
Meta's pitch deck for Super live streaming was leaked.
What were the slides in the pitch deck for Metas Super?
Embed not supported: see full deck & article here →
View examples of Meta's pitch deck for Super:
Product Slides, first
The pitch deck begins with Super's mission:
Super is a Facebook-incubated platform which helps content creators connect with their fans digitally, and for super fans to meet and support their favorite creators. In the spirit of Late Night talk shows, we feature creators (“Superstars”), who are guests at a live, hosted conversation moderated by a Host.
This slide (and most of the deck) is text-heavy, with few icons, bullets, and illustrations to break up the content. Super's online app status (which requires no download or installation) might be used as a callout (rather than paragraph-form).
Meta's Super platform focuses on brand sponsorships and native placements, as shown in the slide above.
One of our theses is the idea that creators should benefit monetarily from their Super experiences, and we believe that offering a menu of different monetization strategies will enable the right experience for each creator. Our current focus is exploring sponsorship opportunities for creators, to better understand what types of sponsor placements will facilitate the best experience for all Super customers (viewers, creators, and advertisers).
Colorful mockups help bring Metas vision for Super to life.
2. Slide Features
Super's pitch deck focuses on the platform's features. The deck covers pre-show, pre-roll, and post-event for a Sponsored Experience.
Pre-show: active 30 minutes before the show's start
Pre-roll: Play a 15-minute commercial for the sponsor before the event (auto-plays once)
Meet and Greet: This event can have a branding, such as Meet & Greet presented by [Snickers]
Super Selfies: Makers and followers get a digital souvenir to post on social media.
Post-Event: Possibility to draw viewers' attention to sponsored content/links during the after-show
Almost every screen displays the Sponsor logo, link, and/or branded background. Viewers can watch sponsor video while waiting for the event to start.
Slide 3: Business Model
Meta's presentation for Super is incomplete without numbers. Super's first slide outlines the creator, sponsor, and Super's obligations. Super does not charge creators any fees or commissions on sponsorship earnings.
How to make a great pitch deck
We hope you can use the Super pitch deck to improve your business. Bestpitchdeck.com/super-meta is a bookmarkable link.
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Our team has helped close $100M+ in agreements and funding for premier companies and VC firms. Use our presentation templates, one-pagers, or financial models to launch your pitch.
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M&A Pitch Deck Perfect Pitch Deck is a template for later-stage enterprises engaging more sophisticated conversations like M&A, late-stage investment (Series C+), or partnerships & funding. Our team prepared this presentation to help creators confidently pitch to investment banks, PE firms, and hedge funds (and vice versa).
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