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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
195 countries want Terra Luna founder Do Kwon
Interpol has issued a red alert on Terraform Labs' CEO, South Korean prosecutors said.
After the May crash of Terra Luna revealed tax evasion issues, South Korean officials filed an arrest warrant for Do Kwon, but he is missing.
Do Kwon is now a fugitive in 195 countries after Seoul prosecutors placed him to Interpol's red list. Do Kwon hasn't commented since then. The red list allows any country's local authorities to apprehend Do Kwon.
Do Dwon and Terraform Labs were believed to have moved to Singapore days before the $40 billion wipeout, but Singapore authorities said he fled the country on September 17. Do Kwon tweeted that he wasn't on the run and cited privacy concerns.
Do Kwon was not on the red list at the time and said he wasn't "running," only to reply to his own tweet saying he hasn't jogged in a while and needed to trim calories.
Whether or not it makes sense to read too much into this, the reality is that Do Kwon is now on Interpol red list, despite the firmly asserts on twitter that he does absolutely nothing to hide.
UPDATE:
South Korean authorities are investigating alleged withdrawals of over $60 million U.S. and seeking to freeze these assets. Korean authorities believe a new wallet exchanged over 3000 BTC through OKX and Kucoin.
Do Kwon and the Luna Foundation Guard (of whom Do Kwon is a key member of) have declined all charges and dubbed this disinformation.
Singapore's Luna Foundation Guard (LFG) manages the Terra Ecosystem.
The Legal Situation
Multiple governments are searching for Do Kwon and five other Terraform Labs employees for financial markets legislation crimes.
South Korean authorities arrested a man suspected of tax fraud and Ponzi scheme.
The U.S. SEC is also examining Terraform Labs on how UST was advertised as a stablecoin. No legal precedent exists, so it's unclear what's illegal.
The future of Terraform Labs, Terra, and Terra 2 is unknown, and despite what Twitter shills say about LUNC, the company remains in limbo awaiting a decision that will determine its fate. This project isn't a wise investment.
Stephen Moore
3 years ago
Web 2 + Web 3 = Web 5.
Monkey jpegs and shitcoins have tarnished Web3's reputation. Let’s move on.
Web3 was called "the internet's future."
Well, 'crypto bros' shouted about it loudly.
As quickly as it arrived to be the next internet, it appears to be dead. It's had scandals, turbulence, and crashes galore:
Web 3.0's cryptocurrencies have crashed. Bitcoin's all-time high was $66,935. This month, Ethereum fell from $2130 to $1117. Six months ago, the cryptocurrency market peaked at $3 trillion. Worst is likely ahead.
Gas fees make even the simplest Web3 blockchain transactions unsustainable.
Terra, Luna, and other dollar pegs collapsed, hurting crypto markets. Celsius, a crypto lender backed by VCs and Canada's second-largest pension fund, and Binance, a crypto marketplace, have withheld money and coins. They're near collapse.
NFT sales are falling rapidly and losing public interest.
Web3 has few real-world uses, like most crypto/blockchain technologies. Web3's image has been tarnished by monkey profile pictures and shitcoins while failing to become decentralized (the whole concept is controlled by VCs).
The damage seems irreparable, leaving Web3 in the gutter.
Step forward our new saviour — Web5
Fear not though, as hero awaits to drag us out of the Web3 hellscape. Jack Dorsey revealed his plan to save the internet quickly.
Dorsey has long criticized Web3, believing that VC capital and silicon valley insiders have created a centralized platform. In a tweet that upset believers and VCs (he was promptly blocked by Marc Andreessen), Dorsey argued, "You don't own "Web3." VCs and LPs do. Their incentives prevent it. It's a centralized organization with a new name.
Dorsey announced Web5 on June 10 in a very Elon-like manner. Block's TBD unit will work on the project (formerly Square).
Web5's pitch is that users will control their own data and identity. Bitcoin-based. Sound familiar? The presentation pack's official definition emphasizes decentralization. Web5 is a decentralized web platform that enables developers to write decentralized web apps using decentralized identifiers, verifiable credentials, and decentralized web nodes, returning ownership and control over identity and data to individuals.
Web5 would be permission-less, open, and token-less. What that means for Earth is anyone's guess. Identity. Ownership. Blockchains. Bitcoin. Different.
Web4 appears to have been skipped, forever destined to wish it could have shown the world what it could have been. (It was probably crap.) As this iteration combines Web2 and Web3, simple math and common sense add up to 5. Or something.
Dorsey and his team have had this idea simmering for a while. Daniel Buchner, a member of Block's Decentralized Identity team, said, "We're finishing up Web5's technical components."
Web5 could be the project that decentralizes the internet. It must be useful to users and convince everyone to drop the countless Web3 projects, products, services, coins, blockchains, and websites being developed as I write this.
Web5 may be too late for Dorsey and the incoming flood of creators.
Web6 is planned!
The next months and years will be hectic and less stable than the transition from Web 1.0 to Web 2.0.
Web1 was around 1991-2004.
Web2 ran from 2004 to 2021. (though the Web3 term was first used in 2014, it only really gained traction years later.)
Web3 lasted a year.
Web4 is dead.
Silicon Valley billionaires are turning it into a startup-style race, each disrupting the next iteration until they crack it. Or destroy it completely.
Web5 won't last either.
Jonathan Vanian
3 years ago
What is Terra? Your guide to the hot cryptocurrency
With cryptocurrencies like Bitcoin, Ether, and Dogecoin gyrating in value over the past few months, many people are looking at so-called stablecoins like Terra to invest in because of their more predictable prices.
Terraform Labs, which oversees the Terra cryptocurrency project, has benefited from its rising popularity. The company said recently that investors like Arrington Capital, Lightspeed Venture Partners, and Pantera Capital have pledged $150 million to help it incubate various crypto projects that are connected to Terra.
Terraform Labs and its partners have built apps that operate on the company’s blockchain technology that helps keep a permanent and shared record of the firm’s crypto-related financial transactions.
Here’s what you need to know about Terra and the company behind it.
What is Terra?
Terra is a blockchain project developed by Terraform Labs that powers the startup’s cryptocurrencies and financial apps. These cryptocurrencies include the Terra U.S. Dollar, or UST, that is pegged to the U.S. dollar through an algorithm.
Terra is a stablecoin that is intended to reduce the volatility endemic to cryptocurrencies like Bitcoin. Some stablecoins, like Tether, are pegged to more conventional currencies, like the U.S. dollar, through cash and cash equivalents as opposed to an algorithm and associated reserve token.
To mint new UST tokens, a percentage of another digital token and reserve asset, Luna, is “burned.” If the demand for UST rises with more people using the currency, more Luna will be automatically burned and diverted to a community pool. That balancing act is supposed to help stabilize the price, to a degree.
“Luna directly benefits from the economic growth of the Terra economy, and it suffers from contractions of the Terra coin,” Terraform Labs CEO Do Kwon said.
Each time someone buys something—like an ice cream—using UST, that transaction generates a fee, similar to a credit card transaction. That fee is then distributed to people who own Luna tokens, similar to a stock dividend.
Who leads Terra?
The South Korean firm Terraform Labs was founded in 2018 by Daniel Shin and Kwon, who is now the company’s CEO. Kwon is a 29-year-old former Microsoft employee; Shin now heads the Chai online payment service, a Terra partner. Kwon said many Koreans have used the Chai service to buy goods like movie tickets using Terra cryptocurrency.
Terraform Labs does not make money from transactions using its crypto and instead relies on outside funding to operate, Kwon said. It has raised $57 million in funding from investors like HashKey Digital Asset Group, Divergence Digital Currency Fund, and Huobi Capital, according to deal-tracking service PitchBook. The amount raised is in addition to the latest $150 million funding commitment announced on July 16.
What are Terra’s plans?
Terraform Labs plans to use Terra’s blockchain and its associated cryptocurrencies—including one pegged to the Korean won—to create a digital financial system independent of major banks and fintech-app makers. So far, its main source of growth has been in Korea, where people have bought goods at stores, like coffee, using the Chai payment app that’s built on Terra’s blockchain. Kwon said the company’s associated Mirror trading app is experiencing growth in China and Thailand.
Meanwhile, Kwon said Terraform Labs would use its latest $150 million in funding to invest in groups that build financial apps on Terra’s blockchain. He likened the scouting and investing in other groups as akin to a “Y Combinator demo day type of situation,” a reference to the popular startup pitch event organized by early-stage investor Y Combinator.
The combination of all these Terra-specific financial apps shows that Terraform Labs is “almost creating a kind of bank,” said Ryan Watkins, a senior research analyst at cryptocurrency consultancy Messari.
In addition to cryptocurrencies, Terraform Labs has a number of other projects including the Anchor app, a high-yield savings account for holders of the group’s digital coins. Meanwhile, people can use the firm’s associated Mirror app to create synthetic financial assets that mimic more conventional ones, like “tokenized” representations of corporate stocks. These synthetic assets are supposed to be helpful to people like “a small retail trader in Thailand” who can more easily buy shares and “get some exposure to the upside” of stocks that they otherwise wouldn’t have been able to obtain, Kwon said. But some critics have said the U.S. Securities and Exchange Commission may eventually crack down on synthetic stocks, which are currently unregulated.
What do critics say?
Terra still has a long way to go to catch up to bigger cryptocurrency projects like Ethereum.
Most financial transactions involving Terra-related cryptocurrencies have originated in Korea, where its founders are based. Although Terra is becoming more popular in Korea thanks to rising interest in its partner Chai, it’s too early to say whether Terra-related currencies will gain traction in other countries.
Terra’s blockchain runs on a “limited number of nodes,” said Messari’s Watkins, referring to the computers that help keep the system running. That helps reduce latency that may otherwise slow processing of financial transactions, he said.
But the tradeoff is that Terra is less “decentralized” than other blockchain platforms like Ethereum, which is powered by thousands of interconnected computing nodes worldwide. That could make Terra less appealing to some blockchain purists.
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James White
3 years ago
Ray Dalio suggests reading these three books in 2022.
An inspiring reading list
I'm no billionaire or hedge-fund manager. My bank account doesn't have millions. Ray Dalio's love of reading motivates me to think differently.
Here are some books recommended by Ray Dalio. Each influenced me. Hope they'll help you.
Sapiens by Yuval Noah Harari
Page Count: 512
Rating on Goodreads: 4.39
My favorite nonfiction book.
Sapiens explores human evolution. It explains how Homo Sapiens developed from hunter-gatherers to a dominant species. Amazing!
Sapiens will teach you about human history. Yuval Noah Harari has a follow-up book on human evolution.
My favorite book quotes are:
The tendency for luxuries to turn into necessities and give rise to new obligations is one of history's few unbreakable laws.
Happiness is not dependent on material wealth, physical health, or even community. Instead, it depends on how closely subjective expectations and objective circumstances align.
The romantic comparison between today's industry, which obliterates the environment, and our forefathers, who coexisted well with nature, is unfounded. Homo sapiens held the record among all organisms for eradicating the most plant and animal species even before the Industrial Revolution. The unfortunate distinction of being the most lethal species in the history of life belongs to us.
The Power Of Habit by Charles Duhigg
Page Count: 375
Rating on Goodreads: 4.13
Great book: The Power Of Habit. It illustrates why habits are everything. The book explains how healthier habits can improve your life, career, and society.
The Power of Habit rocks. It's a great book on productivity. Its suggestions helped me build healthier behaviors (and drop bad ones).
Read ASAP!
My favorite book quotes are:
Change may not occur quickly or without difficulty. However, almost any behavior may be changed with enough time and effort.
People who exercise begin to eat better and produce more at work. They are less smokers and are more patient with friends and family. They claim to feel less anxious and use their credit cards less frequently. A fundamental habit that sparks broad change is exercise.
Habits are strong but also delicate. They may develop independently of our awareness or may be purposefully created. They frequently happen without our consent, but they can be altered by changing their constituent pieces. They have a much greater influence on how we live than we realize; in fact, they are so powerful that they cause our brains to adhere to them above all else, including common sense.
Tribe Of Mentors by Tim Ferriss
Page Count: 561
Rating on Goodreads: 4.06
Unusual book structure. It's worth reading if you want to learn from successful people.
The book is Q&A-style. Tim questions everyone. Each chapter features a different person's life-changing advice. In the book, Pressfield, Willink, Grylls, and Ravikant are interviewed.
Amazing!
My favorite book quotes are:
According to one's courage, life can either get smaller or bigger.
Don't engage in actions that you are aware are immoral. The reputation you have with yourself is all that constitutes self-esteem. Always be aware.
People mistakenly believe that focusing means accepting the task at hand. However, that is in no way what it represents. It entails rejecting the numerous other worthwhile suggestions that exist. You must choose wisely. Actually, I'm just as proud of the things we haven't accomplished as I am of what I have. Saying no to 1,000 things is what innovation is.
Joanna Henderson
3 years ago
An Average Day in the Life of a 25-Year-Old -A Rich Man's At-Home Unemployed Girlfriend
And morning water bottle struggles.
Welcome to my TikTok, where I share my stay-at-home life! I'll show you my usual day from morning to night.
I rise early to prepare my guy iced coffee. I make matcha, my favorite drink. I also fill our water bottles, which takes time and effort, so I record and describe the procedure. As you see me perform the unthinkable by putting a water bottle in a soda machine, you'll see my magnificent but unowned condo. My lover has everything, including:
In the living room, a sizable velvet alabaster divan. I was unable to use the words white or sofa in place of alabaster or a divan since they are insufficiently elegant and do not adequately convey how opulent the item is. The price tag on the divan was another huge feature; I'm sure my lover wouldn't purchase any furniture for less than $20k because it would be beneath him.
A plush Swiss coffee-colored Tabriz carpet. Once more, white is a color associated with the underclass; for us, the wealthy, it's alabaster or swiss coffee. Sorry, my boyfriend is wealthy; I'm truly in the same situation. And yet, I’m the one whos freeloading off of him, not you haha!
Soft translucent powder is the hue of the vinyl wallcoverings. I merely made up the name of that hue, but I have to maintain the online character I've established. There is no room for adopting language typical of peasant people; I must reiterate that I am wealthy while they are not.
I rest after filling our water bottles. I'm really fatigued from chores. My boyfriend is skeptical about hiring a housekeeper and cook. Does he assume I'm a servant or maid? I can't be overly demanding or throw a tantrum since he may replace me with a younger version. Leonardo Di Caprio's fault!
After the break, I bring my lover a water bottle. He's off to work with my best wishes. After cleaning the shower, I text my BF saying I broke a nail. He charged $675 for a crystal-topped shellac manicure. Lucky me!
After this morning's crazy choirs, especially the water bottle one, I'm famished. I dress quickly and go to the neighborhood organic-vegan-gluten-free-sugar-free-plasma-free-GMO-free-HBO-free breakfast place. Most folks can't afford $17.99 for a caffeine-free-mushroom-plus-mud-and-electrolytes morning beverage. It goes nicely with my matcha. Eggs Benedict cost $68. English muffins are off-limits. I can't make myself obese. My partner said he'd swap me for a 19-year-old Eastern European if I keep eating bacon.
I leave no tip since tipping is too much pressure and math for me, so I go shopping.
My shopping adventures have gotten monotonous. 47 designer bags and 114 bag covers Birkins need their own luggage. My babies! I've never caught my BF with a baby. I have sleeping medications and a turkey baster. Tatiana is much younger and thinner than me, so I can't lose him to her. The goal is to become a stay-at-home wife shortly. A turkey baster is essential.
After spending $955 on La Mer lotions and getting a crystal manicure, I nap. Before my boyfriend's return, I can nap for 5 hours.
I wake up around 4 pm — it’s time to prepare dinner. Yes, I said “prepare for dinner,” not “prepare dinner.” I have crystals on my nails! Do you really think I would cook? No way.
My husband's arrival still requires much work. I clean the kitchen, get cutlery and napkins. I order UberEats while my BF is 30-45 minutes away.
Wagyu steaks with Matsutake mushroom soup today. I pick desserts for my lover but not myself. Eastern European threat?
When my BF gets home from work, we eat. I don't believe in tipping UberEats drivers. If he wants to appreciate life's finer things, he should locate a rich woman.
After eating, we plan our getaway. I requested Aruba's fanciest hotel for winter and expect a butler. We're bickering over who gets the butler. We may need two.
Day's end, I'm exhausted. Stay-at-home girlfriends put in a lot of time and work. Work and duties are never-ending.
Before bed, I shower and use a liquid gold mask in my 27-step makeup procedure. It's a French luxury brand, not La Mer.
Here's my day.
Note: I like satire and absurd trends. Stay-at-home-girlfriend TikTok videos have become popular recently.
I don't shame or support such agreements; I'm just an observer. Thanks for reading.
Jared Heyman
2 years ago
The survival and demise of Y Combinator startups
I've written a lot about Y Combinator's success, but as any startup founder or investor knows, many startups fail.
Rebel Fund invests in the top 5-10% of new Y Combinator startups each year, so we focus on identifying and supporting the most promising technology startups in our ecosystem. Given the power law dynamic and asymmetric risk/return profile of venture capital, we worry more about our successes than our failures. Since the latter still counts, this essay will focus on the proportion of YC startups that fail.
Since YC's launch in 2005, the figure below shows the percentage of active, inactive, and public/acquired YC startups by batch.
As more startups finish, the blue bars (active) decrease significantly. By 12 years, 88% of startups have closed or exited. Only 7% of startups reach resolution each year.
YC startups by status after 12 years:
Half the startups have failed, over one-third have exited, and the rest are still operating.
In venture investing, it's said that failed investments show up before successful ones. This is true for YC startups, but only in their early years.
Below, we only present resolved companies from the first chart. Some companies fail soon after establishment, but after a few years, the inactive vs. public/acquired ratio stabilizes around 55:45. After a few years, a YC firm is roughly as likely to quit as fail, which is better than I imagined.
I prepared this post because Rebel investors regularly question me about YC startup failure rates and how long it takes for them to exit or shut down.
Early-stage venture investors can overlook it because 100x investments matter more than 0x investments.
YC founders can ignore it because it shouldn't matter if many of their peers succeed or fail ;)