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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

Protos

Protos

3 years ago

StableGains lost $42M in Anchor Protocol.

StableGains lost millions of dollars in customer funds in Anchor Protocol without telling its users. The Anchor Protocol offered depositors 19-20% APY before its parent ecosystem, Terra LUNA, lost tens of billions of dollars in market capitalization as LUNA fell below $0.01 and its stablecoin (UST) collapsed.

A Terra Research Forum member raised the alarm. StableGains changed its homepage and Terms and Conditions to reflect how it mitigates risk, a tacit admission that it should have done so from the start.

StableGains raised $600,000 in YCombinator's W22 batch. Moonfire, Broom Ventures, and Goodwater Capital invested $3 million more.

StableGains' 15% yield product attracted $42 million in deposits. StableGains kept most of its deposits in Anchor's UST pool earning 19-20% APY, kept one-quarter of the interest as a management fee, and then gave customers their promised 15% APY. It lost almost all customer funds when UST melted down. It changed withdrawal times, hurting customers.

  • StableGains said de-pegging was unlikely. According to its website, 1 UST can be bought and sold for $1 of LUNA. LUNA became worthless, and Terra shut down its blockchain.
  • It promised to diversify assets across several stablecoins to reduce the risk of one losing its $1 peg, but instead kept almost all of them in one basket.
  • StableGains promised withdrawals in three business days, even if a stablecoin needed time to regain its peg. StableGains uses Coinbase for deposits and withdrawals, and customers receive the exact amount of USDC requested.

StableGains scrubs its website squeaky clean

StableGains later edited its website to say it only uses the "most trusted and tested stablecoins" and extended withdrawal times from three days to indefinite time "in extreme cases."

Previously, USDC, TerraUST (UST), and Dai were used (DAI). StableGains changed UST-related website content after the meltdown. It also removed most references to DAI.

Customers noticed a new clause in the Terms and Conditions denying StableGains liability for withdrawal losses. This new clause would have required customers to agree not to sue before withdrawing funds, avoiding a class-action lawsuit.


Customers must sign a waiver to receive a refund.

Erickson Kramer & Osborne law firm has asked StableGains to preserve all internal documents on customer accounts, marketing, and TerraUSD communications. The firm has not yet filed a lawsuit.


Thousands of StableGains customers lost an estimated $42 million.

Celsius Network customers also affected

CEL used Terra LUNA's Anchor Protocol. Celsius users lost money in the crypto market crash and UST meltdown. Many held CEL and LUNA as yielding deposits.

CEO Alex Mashinsky accused "unknown malefactors" of targeting Celsius Network without evidence. Celsius has not publicly investigated this claim as of this article's publication.

CEL fell before UST de-pegged. On June 2, 2021, it reached $8.01. May 19's close: $0.82.

When some Celsius Network users threatened to leave over token losses, Mashinsky replied, "Leave if you don't think I'm sincere and working harder than you, seven days a week."

Celsius Network withdrew $500 million from Anchor Protocol, but smaller holders had trouble.

Read original article here

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.

Coinbase

Coinbase

4 years ago

10 Predictions for Web3 and the Cryptoeconomy for 2022

By Surojit Chatterjee, Chief Product Officer

2021 proved to be a breakout year for crypto with BTC price gaining almost 70% yoy, Defi hitting $150B in value locked, and NFTs emerging as a new category. Here’s my view through the crystal ball into 2022 and what it holds for our industry:

1. Eth scalability will improve, but newer L1 chains will see substantial growth — As we welcome the next hundred million users to crypto and Web3, scalability challenges for Eth are likely to grow. I am optimistic about improvements in Eth scalability with the emergence of Eth2 and many L2 rollups. Traction of Solana, Avalanche and other L1 chains shows that we’ll live in a multi-chain world in the future. We’re also going to see newer L1 chains emerge that focus on specific use cases such as gaming or social media.

2. There will be significant usability improvements in L1-L2 bridges — As more L1 networks gain traction and L2s become bigger, our industry will desperately seek improvements in speed and usability of cross-L1 and L1-L2 bridges. We’re likely to see interesting developments in usability of bridges in the coming year.

3. Zero knowledge proof technology will get increased traction — 2021 saw protocols like ZkSync and Starknet beginning to get traction. As L1 chains get clogged with increased usage, ZK-rollup technology will attract both investor and user attention. We’ll see new privacy-centric use cases emerge, including privacy-safe applications, and gaming models that have privacy built into the core. This may also bring in more regulator attention to crypto as KYC/AML could be a real challenge in privacy centric networks.

4. Regulated Defi and emergence of on-chain KYC attestation — Many Defi protocols will embrace regulation and will create separate KYC user pools. Decentralized identity and on-chain KYC attestation services will play key roles in connecting users’ real identity with Defi wallet endpoints. We’ll see more acceptance of ENS type addresses, and new systems from cross chain name resolution will emerge.

5. Institutions will play a much bigger role in Defi participation — Institutions are increasingly interested in participating in Defi. For starters, institutions are attracted to higher than average interest-based returns compared to traditional financial products. Also, cost reduction in providing financial services using Defi opens up interesting opportunities for institutions. However, they are still hesitant to participate in Defi. Institutions want to confirm that they are only transacting with known counterparties that have completed a KYC process. Growth of regulated Defi and on-chain KYC attestation will help institutions gain confidence in Defi.

6. Defi insurance will emerge — As Defi proliferates, it also becomes the target of security hacks. According to London-based firm Elliptic, total value lost by Defi exploits in 2021 totaled over $10B. To protect users from hacks, viable insurance protocols guaranteeing users’ funds against security breaches will emerge in 2022.

7. NFT Based Communities will give material competition to Web 2.0 social networks — NFTs will continue to expand in how they are perceived. We’ll see creator tokens or fan tokens take more of a first class seat. NFTs will become the next evolution of users’ digital identity and passport to the metaverse. Users will come together in small and diverse communities based on types of NFTs they own. User created metaverses will be the future of social networks and will start threatening the advertising driven centralized versions of social networks of today.

8. Brands will start actively participating in the metaverse and NFTs — Many brands are realizing that NFTs are great vehicles for brand marketing and establishing brand loyalty. Coca-Cola, Campbell’s, Dolce & Gabbana and Charmin released NFT collectibles in 2021. Adidas recently launched a new metaverse project with Bored Ape Yacht Club. We’re likely to see more interesting brand marketing initiatives using NFTs. NFTs and the metaverse will become the new Instagram for brands. And just like on Instagram, many brands may start as NFT native. We’ll also see many more celebrities jumping in the bandwagon and using NFTs to enhance their personal brand.

9. Web2 companies will wake up and will try to get into Web3 — We’re already seeing this with Facebook trying to recast itself as a Web3 company. We’re likely to see other big Web2 companies dipping their toes into Web3 and metaverse in 2022. However, many of them are likely to create centralized and closed network versions of the metaverse.

10. Time for DAO 2.0 — We’ll see DAOs become more mature and mainstream. More people will join DAOs, prompting a change in definition of employment — never receiving a formal offer letter, accepting tokens instead of or along with fixed salaries, and working in multiple DAO projects at the same time. DAOs will also confront new challenges in terms of figuring out how to do M&A, run payroll and benefits, and coordinate activities in larger and larger organizations. We’ll see a plethora of tools emerge to help DAOs execute with efficiency. Many DAOs will also figure out how to interact with traditional Web2 companies. We’re likely to see regulators taking more interest in DAOs and make an attempt to educate themselves on how DAOs work.

Thanks to our customers and the ecosystem for an incredible 2021. Looking forward to another year of building the foundations for Web3. Wagmi.

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Katharine Valentino

Katharine Valentino

3 years ago

A Gun-toting Teacher Is Like a Cook With Rat Poison

Pink or blue AR-15s?

A teacher teaches; a gun kills. Killing isn't teaching. Killing is opposite of teaching.

Without 27 school shootings this year, we wouldn't be talking about arming teachers. Gun makers, distributors, and the NRA cause most school shootings. Gun makers, distributors, and the NRA wouldn't be huge business if weapons weren't profitable.

Guns, ammo, body armor, holsters, concealed carriers, bore sights, cleaner kits, spare magazines and speed loaders, gun safes, and ear protection are sold. And more guns.

And lots more profit.

Guns aren't bread. You eat a loaf of bread in a week or so and then must buy more. Bread makers will make money. Winchester 94.30–30 1899 Lever Action Rifle from 1894 still kills. (For safety, I won't link to the ad.) Gun makers don't object if you collect antique weapons, but they need you to buy the latest, in-style killing machine. The youngster who killed 19 students and 2 teachers at Robb Elementary School in Uvalde, Texas, used an AR-15. Better yet, two.

Salvador Ramos, the Robb Elementary shooter, is a "killing influencer" He pushes consumers to buy items, which benefits manufacturers and distributors. Like every previous AR-15 influencer, he profits Colt, the rifle's manufacturer, and 52,779 gun dealers in the U.S. Ramos and other AR-15 influences make us fear for our safety and our children's. Fearing for our safety, we acquire 20 million firearms a year and live in a gun culture.

So now at school, we want to arm teachers.

Consider. Which of your teachers would you have preferred in body armor with a gun drawn?

Miss Summers? Remember her bringing daisies from her yard to second grade? She handed each student a beautiful flower. Miss Summers loved everyone, even those with AR-15s. She can't shoot.

Frasier? Mr. Frasier turned a youngster over down to explain "invert." Mr. Frasier's hands shook when he wasn't flipping fifth-graders and fractions. He may have shot wrong.

Mrs. Barkley barked in high school English class when anyone started an essay with "But." Mrs. Barkley dubbed Abie a "Jewboy" and gave him terrible grades. Arming Miss Barkley is like poisoning the chef.

Think back. Do you remember a teacher with a gun? No. Arming teachers so the gun industry can make more money is the craziest idea ever.

Or maybe you agree with Ted Cruz, the gun lobby-bought senator, that more guns reduce gun violence. After the next school shooting, you'll undoubtedly talk about arming teachers and pupils. Colt will likely develop a backpack-sized, lighter version of its popular killing machine in pink and blue for kids and boys. The MAR-15? (M for mini).


This post is a summary. Read the full one here.

Logan Rane

Logan Rane

2 years ago

I questioned Chat-GPT for advice on the top nonfiction books. Here's What It Suggests

You have to use it.

Chat-GPT Logo

Chat-GPT is a revolution.

All social media outlets are discussing it. How it will impact the future and different things.

True.

I've been using Chat-GPT for a few days, and it's a rare revolution. It's amazing and will only improve.

I asked Chat-GPT about the best non-fiction books. It advised this, albeit results rely on interests.

The Immortal Life of Henrietta Lacks

by Rebecca Skloot

Science, Biography

A impoverished tobacco farmer dies of cervical cancer in The Immortal Life of Henrietta Lacks. Her cell strand helped scientists treat polio and other ailments.

Rebecca Skloot discovers about Henrietta, her family, how the medical business exploited black Americans, and how her cells can live forever in a fascinating and surprising research.

You ought to read it.

  1. if you want to discover more about the past of medicine.

  2. if you want to discover more about American history.

Bad Blood: Secrets and Lies in a Silicon Valley Startup

by John Carreyrou

Tech, Bio

Bad Blood tells the terrifying story of how a Silicon Valley tech startup's blood-testing device placed millions of lives at risk.

John Carreyrou, a Pulitzer Prize-winning journalist, wrote this book.

Theranos and its wunderkind CEO, Elizabeth Holmes, climbed to popularity swiftly and then plummeted.

You ought to read it.

  1. if you are a start-up employee.

  2. specialists in medicine.

The Power of Now: A Guide to Spiritual Enlightenment

by Eckhart Tolle

Self-improvement, Spirituality

The Power of Now shows how to stop suffering and attain inner peace by focusing on the now and ignoring your mind.

The book also helps you get rid of your ego, which tries to control your ideas and actions.

If you do this, you may embrace the present, reduce discomfort, strengthen relationships, and live a better life.

You ought to read it.

  1. if you're looking for serenity and illumination.

  2. If you believe that you are ruining your life, stop.

  3. if you're not happy.

The 7 Habits of Highly Effective People

by Stephen R. Covey

Profession, Success

The 7 Habits of Highly Effective People is an iconic self-help book.

This vital book offers practical guidance for personal and professional success.

This non-fiction book is one of the most popular ever.

You ought to read it.

  1. if you want to reach your full potential.

  2. if you want to discover how to achieve all your objectives.

  3. if you are just beginning your journey toward personal improvement.

Sapiens: A Brief History of Humankind

by Yuval Noah Harari

Science, History

Sapiens explains how our species has evolved from our earliest ancestors to the technology age.

How did we, a species of hairless apes without tails, come to control the whole planet?

It describes the shifts that propelled Homo sapiens to the top.

You ought to read it.

  1. if you're interested in discovering our species' past.

  2. if you want to discover more about the origins of human society and culture.

Eve Arnold

Eve Arnold

3 years ago

Your Ideal Position As a Part-Time Creator

Inspired by someone I never met

Photo by Nubelson Fernandes

Inspiration is good and bad.

Paul Jarvis inspires me. He's a web person and writer who created his own category by being himself.

Paul said no thank you when everyone else was developing, building, and assuming greater responsibilities. This isn't success. He rewrote the rules. Working for himself, expanding at his own speed, and doing what he loves were his definitions of success.

Play with a problem that you have

The biggest problem can be not recognizing a problem.

Acceptance without question is deception. When you don't push limits, you forget how. You start thinking everything must be as it is.

For example: working. Paul worked a 9-5 agency work with little autonomy. He questioned whether the 9-5 was a way to live, not the way.

Another option existed. So he chipped away at how to live in this new environment.

Don't simply jump

Internet writers tell people considering quitting 9-5 to just quit. To throw in the towel. To do what you like.

The advice is harmful, despite the good intentions. People think quitting is hard. Like courage is the issue. Like handing your boss a resignation letter.

Nope. The tough part comes after. It’s easy to jump. Landing is difficult.

The landing

Paul didn't quit. Intelligent individuals don't. Smart folks focus on landing. They imagine life after 9-5.

Paul had been a web developer for a long time, had solid clients, and was respected. Hence if he pushed the limits and discovered another route, he had the potential to execute.

Working on the side

Society loves polarization. It’s left or right. Either way. Or chaos. It's 9-5 or entrepreneurship.

But like Paul, you can stretch polarization's limits. In-between exists.

You can work a 9-5 and side jobs (as I do). A mix of your favorites. The 9-5's stability and creativity. Fire and routine.

Remember you can't have everything but anything. You can create and work part-time.

My hybrid lifestyle

Not selling books doesn't destroy my world. My globe keeps spinning if my new business fails or if people don't like my Tweets. Unhappy algorithm? Cool. I'm not bothered (okay maybe a little).

The mix gives me the best of both worlds. To create, hone my skill, and grasp big-business basics. I like routine, but I also appreciate spending 4 hours on Saturdays writing.

Some days I adore leaving work at 5 pm and disconnecting. Other days, I adore having a place to write if inspiration strikes during a run or a discussion.

I’m a part-time creator

I’m a part-time creator. No, I'm not trying to quit. I don't work 5 pm - 2 am on the side. No, I'm not at $10,000 MRR.

I work part-time but enjoy my 9-5. My 9-5 has goodies. My side job as well.

It combines both to meet my lifestyle. I'm satisfied.

Join the Part-time Creators Club for free here. I’ll send you tips to enhance your creative game.