:max_bytes(150000):strip_icc():gifv():format(webp)/reiff_headshot-5bfc2a60c9e77c00519a70bd.jpg)
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
OnChain Wizard
3 years ago
How to make a >800 million dollars in crypto attacking the once 3rd largest stablecoin, Soros style
Everyone is talking about the $UST attack right now, including Janet Yellen. But no one is talking about how much money the attacker made (or how brilliant it was). Lets dig in.
Our story starts in late March, when the Luna Foundation Guard (or LFG) starts buying BTC to help back $UST. LFG started accumulating BTC on 3/22, and by March 26th had a $1bn+ BTC position. This is leg #1 that made this trade (or attack) brilliant.
The second leg comes in the form of the 4pool Frax announcement for $UST on April 1st. This added the second leg needed to help execute the strategy in a capital efficient way (liquidity will be lower and then the attack is on).
We don't know when the attacker borrowed 100k BTC to start the position, other than that it was sold into Kwon's buying (still speculation). LFG bought 15k BTC between March 27th and April 11th, so lets just take the average price between these dates ($42k).
So you have a ~$4.2bn short position built. Over the same time, the attacker builds a $1bn OTC position in $UST. The stage is now set to create a run on the bank and get paid on your BTC short. In anticipation of the 4pool, LFG initially removes $150mm from 3pool liquidity.
The liquidity was pulled on 5/8 and then the attacker uses $350mm of UST to drain curve liquidity (and LFG pulls another $100mm of liquidity).
But this only starts the de-pegging (down to 0.972 at the lows). LFG begins selling $BTC to defend the peg, causing downward pressure on BTC while the run on $UST was just getting started.
With the Curve liquidity drained, the attacker used the remainder of their $1b OTC $UST position ($650mm or so) to start offloading on Binance. As withdrawals from Anchor turned from concern into panic, this caused a real de-peg as people fled for the exits
So LFG is selling $BTC to restore the peg while the attacker is selling $UST on Binance. Eventually the chain gets congested and the CEXs suspend withdrawals of $UST, fueling the bank run panic. $UST de-pegs to 60c at the bottom, while $BTC bleeds out.
The crypto community panics as they wonder how much $BTC will be sold to keep the peg. There are liquidations across the board and LUNA pukes because of its redemption mechanism (the attacker very well could have shorted LUNA as well). BTC fell 25% from $42k on 4/11 to $31.3k
So how much did our attacker make? There aren't details on where they covered obviously, but if they are able to cover (or buy back) the entire position at ~$32k, that means they made $952mm on the short.
On the $350mm of $UST curve dumps I don't think they took much of a loss, lets assume 3% or just $11m. And lets assume that all the Binance dumps were done at 80c, thats another $125mm cost of doing business. For a grand total profit of $815mm (bf borrow cost).
BTC was the perfect playground for the trade, as the liquidity was there to pull it off. While having LFG involved in BTC, and foreseeing they would sell to keep the peg (and prevent LUNA from dying) was the kicker.
Lastly, the liquidity being low on 3pool in advance of 4pool allowed the attacker to drain it with only $350mm, causing the broader panic in both BTC and $UST. Any shorts on LUNA would've added a lot of P&L here as well, with it falling -65% since 5/7.
And for the reply guys, yes I know a lot of this involves some speculation & assumptions. But a lot of money was made here either way, and I thought it would be cool to dive into how they did it.
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!
Isobel Asher Hamilton
3 years ago
$181 million in bitcoin buried in a dump. $11 million to get them back
James Howells lost 8,000 bitcoins. He has $11 million to get them back.
His life altered when he threw out an iPhone-sized hard drive.
Howells, from the city of Newport in southern Wales, had two identical laptop hard drives squirreled away in a drawer in 2013. One was blank; the other had 8,000 bitcoins, currently worth around $181 million.
He wanted to toss out the blank one, but the drive containing the Bitcoin went to the dump.
He's determined to reclaim his 2009 stash.
Howells, 36, wants to arrange a high-tech treasure hunt for bitcoins. He can't enter the landfill.
Newport's city council has rebuffed Howells' requests to dig for his hard drive for almost a decade, stating it would be expensive and environmentally destructive.
I got an early look at his $11 million idea to search 110,000 tons of trash. He expects submitting it to the council would convince it to let him recover the hard disk.
110,000 tons of trash, 1 hard drive
Finding a hard disk among heaps of trash may seem Herculean.
Former IT worker Howells claims it's possible with human sorters, robot dogs, and an AI-powered computer taught to find hard drives on a conveyor belt.
His idea has two versions, depending on how much of the landfill he can search.
His most elaborate solution would take three years and cost $11 million to sort 100,000 metric tons of waste. Scaled-down version costs $6 million and takes 18 months.
He's created a team of eight professionals in AI-powered sorting, landfill excavation, garbage management, and data extraction, including one who recovered Columbia's black box data.
The specialists and their companies would be paid a bonus if they successfully recovered the bitcoin stash.
Howells: "We're trying to commercialize this project."
Howells claimed rubbish would be dug up by machines and sorted near the landfill.
Human pickers and a Max-AI machine would sort it. The machine resembles a scanner on a conveyor belt.
Remi Le Grand of Max-AI told us it will train AI to recognize Howells-like hard drives. A robot arm would select candidates.
Howells has added security charges to his scheme because he fears people would steal the hard drive.
He's budgeted for 24-hour CCTV cameras and two robotic "Spot" canines from Boston Dynamics that would patrol at night and look for his hard drive by day.
Howells said his crew met in May at the Celtic Manor Resort outside Newport for a pitch rehearsal.
Richard Hammond's narrative swings from banal to epic.
Richard Hammond filmed the meeting and created a YouTube documentary on Howells.
Hammond said of Howells' squad, "They're committed and believe in him and the idea."
Hammond: "It goes from banal to gigantic." "If I were in his position, I wouldn't have the strength to answer the door."
Howells said trash would be cleaned and repurposed after excavation. Reburying the rest.
"We won't pollute," he declared. "We aim to make everything better."
After the project is finished, he hopes to develop a solar or wind farm on the dump site. The council is unlikely to accept his vision soon.
A council representative told us, "Mr. Howells can't convince us of anything." "His suggestions constitute a significant ecological danger, which we can't tolerate and are forbidden by our permit."
Will the recovered hard drive work?
The "platter" is a glass or metal disc that holds the hard drive's data. Howells estimates 80% to 90% of the data will be recoverable if the platter isn't damaged.
Phil Bridge, a data-recovery expert who consulted Howells, confirmed these numbers.
If the platter is broken, Bridge adds, data recovery is unlikely.
Bridge says he was intrigued by the proposal. "It's an intriguing case," he added. Helping him get it back and proving everyone incorrect would be a great success story.
Who'd pay?
Swiss and German venture investors Hanspeter Jaberg and Karl Wendeborn told us they would fund the project if Howells received council permission.
Jaberg: "It's a needle in a haystack and a high-risk investment."
Howells said he had no contract with potential backers but had discussed the proposal in Zoom meetings. "Until Newport City Council gives me something in writing, I can't commit," he added.
Suppose he finds the bitcoins.
Howells said he would keep 30% of the data, worth $54 million, if he could retrieve it.
A third would go to the recovery team, 30% to investors, and the remainder to local purposes, including gifting £50 ($61) in bitcoin to each of Newport's 150,000 citizens.
Howells said he opted to spend extra money on "professional firms" to help convince the council.
What if the council doesn't approve?
If Howells can't win the council's support, he'll sue, claiming its actions constitute a "illegal embargo" on the hard drive. "I've avoided that path because I didn't want to cause complications," he stated. I wanted to cooperate with Newport's council.
Howells never met with the council face-to-face. He mentioned he had a 20-minute Zoom meeting in May 2021 but thought his new business strategy would help.
He met with Jessica Morden on June 24. Morden's office confirmed meeting.
After telling the council about his proposal, he can only wait. "I've never been happier," he said. This is our most professional operation, with the best employees.
The "crypto proponent" buys bitcoin every month and sells it for cash.
Howells tries not to think about what he'd do with his part of the money if the hard disk is found functional. "Otherwise, you'll go mad," he added.
This post is a summary. Read the full article here.
You might also like
Kaitlin Fritz
3 years ago
The Entrepreneurial Chicken and Egg
University entrepreneurship is like a Willy Wonka Factory of ideas. Classes, roommates, discussions, and the cafeteria all inspire new ideas. I've seen people establish a business without knowing its roots.
Chicken or egg? On my mind: I've asked university founders around the world whether the problem or solution came first.
The Problem
One African team I met started with the “instant noodles” problem in their academic ecosystem. Many of us have had money issues in college, which may have led to poor nutritional choices.
Many university students in a war-torn country ate quick noodles or pasta for dinner.
Noodles required heat, water, and preparation in the boarding house. Unreliable power from one hot plate per blue moon. What's healthier, easier, and tastier than sodium-filled instant pots?
BOOM. They were fixing that. East African kids need affordable, nutritious food.
This is a real difficulty the founders faced every day with hundreds of comrades.
This sparked their serendipitous entrepreneurial journey and became their business's cornerstone.
The Solution
I asked a UK team about their company idea. They said the solution fascinated them.
The crew was fiddling with social media algorithms. Why are some people more popular? They were studying platforms and social networks, which offered a way for them.
Solving a problem? Yes. Long nights of university research lead them to it. Is this like world hunger? Social media influencers confront this difficulty regularly.
It made me ponder something. Is there a correct response?
In my heart, yes, but in my head…maybe?
I believe you should lead with empathy and embrace the problem, not the solution. Big or small, businesses should solve problems. This should be your focus. This is especially true when building a social company with an audience in mind.
Philosophically, invention and innovation are occasionally accidental. Also not penalized. Think about bugs and the creation of Velcro, or the inception of Teflon. They tackle difficulties we overlook. The route to the problem may look different, but there is a path there.
There's no golden ticket to the Chicken-Egg debate, but I'll keep looking this summer.
Katrine Tjoelsen
3 years ago
8 Communication Hacks I Use as a Young Employee
Learn these subtle cues to gain influence.
Hate being ignored?
As a 24-year-old, I struggled at work. Attention-getting tips How to avoid being judged by my size, gender, and lack of wrinkles or gray hair?
I've learned seniority hacks. Influence. Within two years as a product manager, I led a team. I'm a Stanford MBA student.
These communication hacks can make you look senior and influential.
1. Slowly speak
We speak quickly because we're afraid of being interrupted.
When I doubt my ideas, I speak quickly. How can we slow down? Jamie Chapman says speaking slowly saps our energy.
Chapman suggests emphasizing certain words and pausing.
2. Interrupted? Stop the stopper
Someone interrupt your speech?
Don't wait. "May I finish?" No pause needed. Stop interrupting. I first tried this in Leadership Laboratory at Stanford. How quickly I gained influence amazed me.
Next time, try “May I finish?” If that’s not enough, try these other tips from Wendy R.S. O’Connor.
3. Context
Others don't always see what's obvious to you.
Through explanation, you help others see the big picture. If a senior knows it, you help them see where your work fits.
4. Don't ask questions in statements
“Your statement lost its effect when you ended it on a high pitch,” a group member told me. Upspeak, it’s called. I do it when I feel uncertain.
Upspeak loses influence and credibility. Unneeded. When unsure, we can say "I think." We can even ask a proper question.
Someone else's boasting is no reason to be dismissive. As leaders and colleagues, we should listen to our colleagues even if they use this speech pattern.
Give your words impact.
5. Signpost structure
Signposts improve clarity by providing structure and transitions.
Communication coach Alexander Lyon explains how to use "first," "second," and "third" He explains classic and summary transitions to help the listener switch topics.
Signs clarify. Clarity matters.
6. Eliminate email fluff
“Fine. When will the report be ready? — Jeff.”
Notice how senior leaders write short, direct emails? I often use formalities like "dear," "hope you're well," and "kind regards"
Formality is (usually) unnecessary.
7. Replace exclamation marks with periods
See how junior an exclamation-filled email looks:
Hi, all!
Hope you’re as excited as I am for tomorrow! We’re celebrating our accomplishments with cake! Join us tomorrow at 2 pm!
See you soon!
Why the exclamation points? Why not just one?
Hi, all.
Hope you’re as excited as I am for tomorrow. We’re celebrating our accomplishments with cake. Join us tomorrow at 2 pm!
See you soon.
8. Take space
"Playing high" means having an open, relaxed body, says Stanford professor and author Deborah Gruenfield.
Crossed legs or looking small? Relax. Get bigger.
CyberPunkMetalHead
2 years ago
Why Bitcoin NFTs Are Incomprehensible yet Likely Here to Stay
I'm trying to understand why Bitcoin NFTs aren't ready.
Ordinals, a new Bitcoin protocol, has been controversial. NFTs can be added to Bitcoin transactions using the protocol. They are not tokens or fungible. Bitcoin NFTs are transaction metadata. Yes. They're not owned.
In January, the Ordinals protocol allowed data like photos to be directly encoded onto sats, the smallest units of Bitcoin worth 0.00000001 BTC, on the Bitcoin blockchain. Ordinals does not need a sidechain or token like other techniques. The Ordinals protocol has encoded JPEG photos, digital art, new profile picture (PFP) projects, and even 1993 DOOM onto the Bitcoin network.
Ordinals inscriptions are permanent digital artifacts preserved on the Bitcoin blockchain. It differs from Ethereum, Solana, and Stacks NFT technologies that allow smart contract creators to change information. Ordinals store the whole image or content on the blockchain, not just a link to an external server, unlike centralized databases, which can change the linked image, description, category, or contract identifier.
So far, more than 50,000 ordinals have been produced on the Bitcoin blockchain, and some of them have already been sold for astronomical amounts. The Ethereum-based CryptoPunks NFT collection spawned Ordinal Punk. Inscription 620 sold for 9.5 BTC, or $218,000, the most.
Segwit and Taproot, two important Bitcoin blockchain updates, enabled this. These protocols store transaction metadata, unlike Ethereum, where the NFT is the token. Bitcoin's NFT is a sat's transaction details.
What effects do ordinary values and NFTs have on the Bitcoin blockchain?
Ordinals will likely have long-term effects on the Bitcoin Ecosystem since they store, transact, and compute more data.
Charges Ordinals introduce scalability challenges. The Bitcoin network has limited transaction throughput and increased fees during peak demand. NFTs could make network transactions harder and more expensive. Ordinals currently occupy over 50% of block space, according to Glassnode.
One of the protocols that supported Ordinals Taproot has also seen a huge uptick:
Taproot use increases block size and transaction costs.
This could cause network congestion but also support more L2s with Ordinals-specific use cases. Dune info here.
Storage Needs The Bitcoin blockchain would need to store more data to store NFT data directly. Since ordinals were introduced, blocksize has tripled from 0.7mb to over 2.2mb, which could increase storage costs and make it harder for nodes to join the network.
Use Case Diversity On the other hand, NFTs on the Bitcoin blockchain could broaden Bitcoin's use cases beyond storage and payment. This could expand Bitcoin's user base. This is two-sided. Bitcoin was designed to be trustless, decentralized, peer-to-peer money.
Chain to permanently store NFTs as ordinals will change everything.
Popularity rise This new use case will boost Bitcoin appeal, according to some. This argument fails since Bitcoin is the most popular cryptocurrency. Popularity doesn't require a new use case. Cryptocurrency adoption boosts Bitcoin. It need not compete with Ethereum or provide extra benefits to crypto investors. If there was a need for another chain that supports NFTs (there isn't), why would anyone choose the slowest and most expensive network? It appears contradictory and unproductive.
Nonetheless, holding an NFT on the Bitcoin blockchain is more secure than any other blockchain, but this has little utility.
Bitcoin NFTs are undoubtedly controversial. NFTs are strange and perhaps harmful to Bitcoin's mission. If Bitcoin NFTs are here to stay, I hope a sidechain or rollup solution will take over and leave the base chain alone.