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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
Alex Bentley
3 years ago
Why Bill Gates thinks Bitcoin, crypto, and NFTs are foolish
Microsoft co-founder Bill Gates assesses digital assets while the bull is caged.
Bill Gates is well-respected.
Reasonably. He co-founded and led Microsoft during its 1980s and 1990s revolution.
After leaving Microsoft, Bill Gates pursued other interests. He and his wife founded one of the world's largest philanthropic organizations, Bill & Melinda Gates Foundation. He also supports immunizations, population control, and other global health programs.
When Gates criticized Bitcoin, cryptocurrencies, and NFTs, it made news.
Bill Gates said at the 58th Munich Security Conference...
“You have an asset class that’s 100% based on some sort of greater fool theory that somebody’s going to pay more for it than I do.”
Gates means digital assets. Like many bitcoin critics, he says digital coins and tokens are speculative.
And he's not alone. Financial experts have dubbed Bitcoin and other digital assets a "bubble" for a decade.
Gates also made fun of Bored Ape Yacht Club and NFTs, saying, "Obviously pricey digital photographs of monkeys will help the world."
Why does Bill Gates dislike digital assets?
According to Gates' latest comments, Bitcoin, cryptos, and NFTs aren't good ways to hold value.
Bill Gates is a better investor than Elon Musk.
“I’m used to asset classes, like a farm where they have output, or like a company where they make products,” Gates said.
The Guardian claimed in April 2021 that Bill and Melinda Gates owned the most U.S. farms. Over 242,000 acres of farmland.
The Gates couple has enough farmland to cover Hong Kong.
Bill Gates is a classic investor. He wants companies with an excellent track record, strong fundamentals, and good management. Or tangible assets like land and property.
Gates prefers the "old economy" over the "new economy"
Gates' criticism of Bitcoin and cryptocurrency ventures isn't surprising. These digital assets lack all of Gates's investing criteria.
Volatile digital assets include Bitcoin. Their costs might change dramatically in a day. Volatility scares risk-averse investors like Gates.
Gates has a stake in the old financial system. As Microsoft's co-founder, Gates helped develop a dominant tech company.
Because of his business, he's one of the world's richest men.
Bill Gates is invested in protecting the current paradigm.
He won't invest in anything that could destroy the global economy.
When Gates criticizes Bitcoin, cryptocurrencies, and NFTs, he's suggesting they're a hoax. These soapbox speeches are one way he protects his interests.
Digital assets aren't a bad investment, though. Many think they're the future.
Changpeng Zhao and Brian Armstrong are two digital asset billionaires. Two crypto exchange CEOs. Binance/Coinbase.
Digital asset revolution won't end soon.
If you disagree with Bill Gates and plan to invest in Bitcoin, cryptocurrencies, or NFTs, do your own research and understand the risks.
But don’t take Bill Gates’ word for it.
He’s just an old rich guy with a lot of farmland.
He has a lot to lose if Bitcoin and other digital assets gain global popularity.
This post is a summary. Read the full article here.
Elnaz Sarraf
3 years ago
Why Bitcoin's Crash Could Be Good for Investors
The crypto market crashed in June 2022. Bitcoin and other cryptocurrencies hit their lowest prices in over a year, causing market panic. Some believe this crash will benefit future investors.
Before I discuss how this crash might help investors, let's examine why it happened. Inflation in the U.S. reached a 30-year high in 2022 after Russia invaded Ukraine. In response, the U.S. Federal Reserve raised interest rates by 0.5%, the most in almost 20 years. This hurts cryptocurrencies like Bitcoin. Higher interest rates make people less likely to invest in volatile assets like crypto, so many investors sold quickly.
The crypto market collapsed. Bitcoin, Ethereum, and Binance dropped 40%. Other cryptos crashed so hard they were delisted from almost every exchange. Bitcoin peaked in April 2022 at $41,000, but after the May interest rate hike, it crashed to $28,000. Bitcoin investors were worried. Even in bad times, this crash is unprecedented.
Bitcoin wasn't "doomed." Before the crash, LUNA was one of the top 5 cryptos by market cap. LUNA was trading around $80 at the start of May 2022, but after the rate hike?
Less than 1 cent. LUNA lost 99.99% of its value in days and was removed from every crypto exchange. Bitcoin's "crash" isn't as devastating when compared to LUNA.
Many people said Bitcoin is "due" for a LUNA-like crash and that the only reason it hasn't crashed is because it's bigger. Still false. If so, Bitcoin should be worth zero by now. We didn't. Instead, Bitcoin reached 28,000, then 29k, 30k, and 31k before falling to 18k. That's not the world's greatest recovery, but it shows Bitcoin's safety.
Bitcoin isn't falling constantly. It fell because of the initial shock of interest rates, but not further. Now, Bitcoin's value is more likely to rise than fall. Bitcoin's low price also attracts investors. They know what prices Bitcoin can reach with enough hype, and they want to capitalize on low prices before it's too late.
Bitcoin's crash was bad, but in a way it wasn't. To understand, consider 2021. In March 2021, Bitcoin surpassed $60k for the first time. Elon Musk's announcement in May that he would no longer support Bitcoin caused a massive crash in the crypto market. In May 2017, Bitcoin's price hit $29,000. Elon Musk's statement isn't worth more than the Fed raising rates. Many expected this big announcement to kill Bitcoin.
Not so. Bitcoin crashed from $58k to $31k in 2021. Bitcoin fell from $41k to $28k in 2022. This crash is smaller. Bitcoin's price held up despite tensions and stress, proving investors still believe in it. What happened after the initial crash in the past?
Bitcoin fell until mid-July. This is also something we’re not seeing today. After a week, Bitcoin began to improve daily. Bitcoin's price rose after mid-July. Bitcoin's price fluctuated throughout the rest of 2021, but it topped $67k in November. Despite no major changes, the peak occurred after the crash. Elon Musk seemed uninterested in crypto and wasn't likely to change his mind soon. What triggered this peak? Nothing, really. What really happened is that people got over the initial statement. They forgot.
Internet users have goldfish-like attention spans. People quickly forgot the crash's cause and were back investing in crypto months later. Despite the market's setbacks, more crypto investors emerged by the end of 2017. Who gained from these peaks? Bitcoin investors who bought low. Bitcoin not only recovered but also doubled its ROI. It was like a movie, and it shows us what to expect from Bitcoin in the coming months.
The current Bitcoin crash isn't as bad as the last one. LUNA is causing market panic. LUNA and Bitcoin are different cryptocurrencies. LUNA crashed because Terra wasn’t able to keep its peg with the USD. Bitcoin is unanchored. It's one of the most decentralized investments available. LUNA's distrust affected crypto prices, including Bitcoin, but it won't last forever.
This is why Bitcoin will likely rebound in the coming months. In 2022, people will get over the rise in interest rates and the crash of LUNA, just as they did with Elon Musk's crypto stance in 2021. When the world moves on to the next big controversy, Bitcoin's price will soar.
Bitcoin may recover for another reason. Like controversy, interest rates fluctuate. The Russian invasion caused this inflation. World markets will stabilize, prices will fall, and interest rates will drop.
Next, lower interest rates could boost Bitcoin's price. Eventually, it will happen. The U.S. economy can't sustain such high interest rates. Investors will put every last dollar into Bitcoin if interest rates fall again.
Bitcoin has proven to be a stable investment. This boosts its investment reputation. Even if Ethereum dethrones Bitcoin as crypto king one day (or any other crypto, for that matter). Bitcoin may stay on top of the crypto ladder for a while. We'll have to wait a few months to see if any of this is true.
This post is a summary. Read the full article here.
Scott Hickmann
4 years ago
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Theresa W. Carey
3 years ago
How Payment for Order Flow (PFOF) Works
What is PFOF?
PFOF is a brokerage firm's compensation for directing orders to different parties for trade execution. The brokerage firm receives fractions of a penny per share for directing the order to a market maker.
Each optionable stock could have thousands of contracts, so market makers dominate options trades. Order flow payments average less than $0.50 per option contract.
Order Flow Payments (PFOF) Explained
The proliferation of exchanges and electronic communication networks has complicated equity and options trading (ECNs) Ironically, Bernard Madoff, the Ponzi schemer, pioneered pay-for-order-flow.
In a December 2000 study on PFOF, the SEC said, "Payment for order flow is a method of transferring trading profits from market making to brokers who route customer orders to specialists for execution."
Given the complexity of trading thousands of stocks on multiple exchanges, market making has grown. Market makers are large firms that specialize in a set of stocks and options, maintaining an inventory of shares and contracts for buyers and sellers. Market makers are paid the bid-ask spread. Spreads have narrowed since 2001, when exchanges switched to decimals. A market maker's ability to play both sides of trades is key to profitability.
Benefits, requirements
A broker receives fees from a third party for order flow, sometimes without a client's knowledge. This invites conflicts of interest and criticism. Regulation NMS from 2005 requires brokers to disclose their policies and financial relationships with market makers.
Your broker must tell you if it's paid to send your orders to specific parties. This must be done at account opening and annually. The firm must disclose whether it participates in payment-for-order-flow and, upon request, every paid order. Brokerage clients can request payment data on specific transactions, but the response takes weeks.
Order flow payments save money. Smaller brokerage firms can benefit from routing orders through market makers and getting paid. This allows brokerage firms to send their orders to another firm to be executed with other orders, reducing costs. The market maker or exchange benefits from additional share volume, so it pays brokerage firms to direct traffic.
Retail investors, who lack bargaining power, may benefit from order-filling competition. Arrangements to steer the business in one direction invite wrongdoing, which can erode investor confidence in financial markets and their players.
Pay-for-order-flow criticism
It has always been controversial. Several firms offering zero-commission trades in the late 1990s routed orders to untrustworthy market makers. During the end of fractional pricing, the smallest stock spread was $0.125. Options spreads widened. Traders found that some of their "free" trades cost them a lot because they weren't getting the best price.
The SEC then studied the issue, focusing on options trades, and nearly decided to ban PFOF. The proliferation of options exchanges narrowed spreads because there was more competition for executing orders. Options market makers said their services provided liquidity. In its conclusion, the report said, "While increased multiple-listing produced immediate economic benefits to investors in the form of narrower quotes and effective spreads, these improvements have been muted with the spread of payment for order flow and internalization."
The SEC allowed payment for order flow to continue to prevent exchanges from gaining monopoly power. What would happen to trades if the practice was outlawed was also unclear. SEC requires brokers to disclose financial arrangements with market makers. Since then, the SEC has watched closely.
2020 Order Flow Payment
Rule 605 and Rule 606 show execution quality and order flow payment statistics on a broker's website. Despite being required by the SEC, these reports can be hard to find. The SEC mandated these reports in 2005, but the format and reporting requirements have changed over the years, most recently in 2018.
Brokers and market makers formed a working group with the Financial Information Forum (FIF) to standardize order execution quality reporting. Only one retail brokerage (Fidelity) and one market maker remain (Two Sigma Securities). FIF notes that the 605/606 reports "do not provide the level of information that allows a retail investor to gauge how well a broker-dealer fills a retail order compared to the NBBO (national best bid or offer’) at the time the order was received by the executing broker-dealer."
In the first quarter of 2020, Rule 606 reporting changed to require brokers to report net payments from market makers for S&P 500 and non-S&P 500 equity trades and options trades. Brokers must disclose payment rates per 100 shares by order type (market orders, marketable limit orders, non-marketable limit orders, and other orders).
Richard Repetto, Managing Director of New York-based Piper Sandler & Co., publishes a report on Rule 606 broker reports. Repetto focused on Charles Schwab, TD Ameritrade, E-TRADE, and Robinhood in Q2 2020. Repetto reported that payment for order flow was higher in the second quarter than the first due to increased trading activity, and that options paid more than equities.
Repetto says PFOF contributions rose overall. Schwab has the lowest options rates, while TD Ameritrade and Robinhood have the highest. Robinhood had the highest equity rating. Repetto assumes Robinhood's ability to charge higher PFOF reflects their order flow profitability and that they receive a fixed rate per spread (vs. a fixed rate per share by the other brokers).
Robinhood's PFOF in equities and options grew the most quarter-over-quarter of the four brokers Piper Sandler analyzed, as did their implied volumes. All four brokers saw higher PFOF rates.
TD Ameritrade took the biggest income hit when cutting trading commissions in fall 2019, and this report shows they're trying to make up the shortfall by routing orders for additional PFOF. Robinhood refuses to disclose trading statistics using the same metrics as the rest of the industry, offering only a vague explanation on their website.
Summary
Payment for order flow has become a major source of revenue as brokers offer no-commission equity (stock and ETF) orders. For retail investors, payment for order flow poses a problem because the brokerage may route orders to a market maker for its own benefit, not the investor's.
Infrequent or small-volume traders may not notice their broker's PFOF practices. Frequent traders and those who trade larger quantities should learn about their broker's order routing system to ensure they're not losing out on price improvement due to a broker prioritizing payment for order flow.
This post is a summary. Read full article here
Will Lockett
3 years ago
The Unlocking Of The Ultimate Clean Energy
The company seeking 24/7 ultra-powerful solar electricity.
We're rushing to adopt low-carbon energy to prevent a self-made doomsday. We're using solar, wind, and wave energy. These low-carbon sources aren't perfect. They consume large areas of land, causing habitat loss. They don't produce power reliably, necessitating large grid-level batteries, an environmental nightmare. We can and must do better than fossil fuels. Longi, one of the world's top solar panel producers, is creating a low-carbon energy source. Solar-powered spacecraft. But how does it work? Why is it so environmentally harmonious? And how can Longi unlock it?
Space-based solar makes sense. Satellites above Medium Earth Orbit (MEO) enjoy 24/7 daylight. Outer space has no atmosphere or ozone layer to block the Sun's high-energy UV radiation. Solar panels can create more energy in space than on Earth due to these two factors. Solar panels in orbit can create 40 times more power than those on Earth, according to estimates.
How can we utilize this immense power? Launch a geostationary satellite with solar panels, then beam power to Earth. Such a technology could be our most eco-friendly energy source. (Better than fusion power!) How?
Solar panels create more energy in space, as I've said. Solar panel manufacture and grid batteries emit the most carbon. This indicates that a space-solar farm's carbon footprint (which doesn't need a battery because it's a constant power source) might be over 40 times smaller than a terrestrial one. Combine that with carbon-neutral launch vehicles like Starship, and you have a low-carbon power source. Solar power has one of the lowest emissions per kWh at 6g/kWh, so space-based solar could approach net-zero emissions.
Space solar is versatile because it doesn't require enormous infrastructure. A space-solar farm could power New York and Dallas with the same efficiency, without cables. The satellite will transmit power to a nearby terminal. This allows an energy system to evolve and adapt as the society it powers changes. Building and maintaining infrastructure can be carbon-intensive, thus less infrastructure means less emissions.
Space-based solar doesn't destroy habitats, either. Solar and wind power can be engineered to reduce habitat loss, but they still harm ecosystems, which must be restored. Space solar requires almost no land, therefore it's easier on Mother Nature.
Space solar power could be the ultimate energy source. So why haven’t we done it yet?
Well, for two reasons: the cost of launch and the efficiency of wireless energy transmission.
Advances in rocket construction and reusable rocket technology have lowered orbital launch costs. In the early 2000s, the Space Shuttle cost $60,000 per kg launched into LEO, but a SpaceX Falcon 9 costs only $3,205. 95% drop! Even at these low prices, launching a space-based solar farm is commercially questionable.
Energy transmission efficiency is half of its commercial viability. Space-based solar farms must be in geostationary orbit to get 24/7 daylight, 22,300 miles above Earth's surface. It's a long way to wirelessly transmit energy. Most laser and microwave systems are below 20% efficient.
Space-based solar power is uneconomical due to low efficiency and high deployment costs.
Longi wants to create this ultimate power. But how?
They'll send solar panels into space to develop space-based solar power that can be beamed to Earth. This mission will help them design solar panels tough enough for space while remaining efficient.
Longi is a Chinese company, and China's space program and universities are developing space-based solar power and seeking commercial partners. Xidian University has built a 98%-efficient microwave-based wireless energy transmission system for space-based solar power. The Long March 5B is China's super-cheap (but not carbon-offset) launch vehicle.
Longi fills the gap. They have the commercial know-how and ability to build solar satellites and terrestrial terminals at scale. Universities and the Chinese government have transmission technology and low-cost launch vehicles to launch this technology.
It may take a decade to develop and refine this energy solution. This could spark a clean energy revolution. Once operational, Longi and the Chinese government could offer the world a flexible, environmentally friendly, rapidly deployable energy source.
Should the world adopt this technology and let China control its energy? I'm not very political, so you decide. This seems to be the beginning of tapping into this planet-saving energy source. Forget fusion reactors. Carbon-neutral energy is coming soon.
Jussi Luukkonen, MBA
3 years ago
Is Apple Secretly Building A Disruptive Tsunami?
A TECHNICAL THOUGHT
The IT giant is seeding the digital Great Renaissance.
Recently, technology has been dull.
We're still fascinated by processing speeds. Wearables are no longer an engineer's dream.
Apple has been quiet and avoided huge announcements. Slowness speaks something. Everything in the spaceship HQ seems to be turning slowly, unlike competitors around buzzwords.
Is this a sign of the impending storm?
Metas stock has fallen while Google milks dumb people. Microsoft steals money from corporations and annexes platforms like Linkedin.
Just surface bubbles?
Is Apple, one of the technology continents, pushing against all others to create a paradigm shift?
The fundamental human right to privacy
Apple's unusual remarks emphasize privacy. They incorporate it into their business models and judgments.
Apple believes privacy is a human right. There are no compromises.
This makes it hard for other participants to gain Apple's ecosystem's efficiencies.
Other players without hardware platforms lose.
Apple delivers new kidneys without rejection, unlike other software vendors. Nothing compromises your privacy.
Corporate citizenship will become more popular.
Apples have full coffers. They've started using that flow to better communities, which is great.
Apple's $2.5B home investment is one example. Google and Facebook are building or proposing to build workforce housing.
Apple's funding helps marginalized populations in more than 25 California counties, not just Apple employees.
Is this a trend, and does Apple keep giving back? Hope so.
I'm not cynical enough to suspect these investments have malicious motives.
The last frontier is the environment.
Climate change is a battle-to-win.
Long-term winners will be companies that protect the environment, turning climate change dystopia into sustainable growth.
Apple has been quietly changing its supply chain to be carbon-neutral by 2030.
“Apple is dedicated to protecting the planet we all share with solutions that are supporting the communities where we work.” Lisa Jackson, Apple’s vice president of environment.
Apple's $4.7 billion Green Bond investment will produce 1.2 gigawatts of green energy for the corporation and US communities. Apple invests $2.2 billion in Europe's green energy. In the Philippines, Thailand, Nigeria, Vietnam, Colombia, Israel, and South Africa, solar installations are helping communities obtain sustainable energy.
Apple is already carbon neutral today for its global corporate operations, and this new commitment means that by 2030, every Apple device sold will have net zero climate impact. -Apple.
Apple invests in green energy and forests to reduce its paper footprint in China and the US. Apple and the Conservation Fund are safeguarding 36,000 acres of US working forest, according to GreenBiz.
Apple's packaging paper is recycled or from sustainably managed forests.
What matters is the scale.
$1 billion is a rounding error for Apple.
These small investments originate from a tree with deep, spreading roots.
Apple's genes are anchored in building the finest products possible to improve consumers' lives.
I felt it when I switched to my iPhone while waiting for a train and had to pack my Macbook. iOS 16 dictation makes writing more enjoyable. Small change boosts productivity. Smooth transition from laptop to small screen and dictation.
Apples' tiny, well-planned steps have great growth potential for all consumers in everything they do.
There is clearly disruption, but it doesn't have to be violent
Digital channels, methods, and technologies have globalized human consciousness. One person's responsibility affects many.
Apple gives us tools to be privately connected. These technologies foster creativity, innovation, fulfillment, and safety.
Apple has invented a mountain of technologies, services, and channels to assist us adapt to the good future or combat evil forces who cynically aim to control us and ruin the environment and communities. Apple has quietly disrupted sectors for decades.
Google, Microsoft, and Meta, among others, should ride this wave. It's a tsunami, but it doesn't have to be devastating if we care, share, and cooperate with political decision-makers and community leaders worldwide.
A fresh Renaissance
Renaissance geniuses Michelangelo and Da Vinci. Different but seeing something no one else could yet see. Both were talented in many areas and could discover art in science and science in art.
These geniuses exemplified a period that changed humanity for the better. They created, used, and applied new, valuable things. It lives on.
Apple is a digital genius orchard. Wozniak and Jobs offered us fertile ground for the digital renaissance. We'll build on their legacy.
We may put our seeds there and see them bloom despite corporate greed and political ignorance.
I think the coming tsunami will illuminate our planet like the Renaissance.