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
Scott Hickmann
3 years ago
Welcome
Welcome to Integrity's Web3 community!

Jeff Scallop
2 years ago
The Age of Decentralized Capitalism and DeFi
DeCap is DeFi's killer app.
“Software is eating the world.” Marc Andreesen, venture capitalist
DeFi. Imagine a blockchain-based alternative financial system that offers the same products and services as traditional finance, but with more variety, faster, more secure, lower cost, and simpler access.
Decentralised finance (DeFi) is a marketplace without gatekeepers or central authority managing the flow of money, where customers engage directly with smart contracts running on a blockchain.
DeFi grew exponentially in 2020/21, with Total Value Locked (an inadequate estimate for market size) topping at $100 billion. After that, it crashed.
The accumulation of funds by individuals with high discretionary income during the epidemic, the novelty of crypto trading, and the high yields given (5% APY for stablecoins on established platforms to 100%+ for risky assets) are among the primary elements explaining this exponential increase.
No longer your older brothers DeFi
Since transactions are anonymous, borrowers had to overcollateralize DeFi 1.0. To borrow $100 in stablecoins, you must deposit $150 in ETH. DeFi 1.0's business strategy raises two problems.
Why does DeFi offer interest rates that are higher than those of the conventional financial system?;
Why would somebody put down more cash than they intended to borrow?
Maxed out on their own resources, investors took loans to acquire more crypto; the demand for those loans raised DeFi yields, which kept crypto prices increasing; as crypto prices rose, investors made a return on their positions, allowing them to deposit more money and borrow more crypto.
This is a bull market game. DeFi 1.0's overcollateralization speculation is dead. Cryptocrash sank it.
The “speculation by overcollateralisation” world of DeFi 1.0 is dead
At a JP Morgan digital assets conference, institutional investors were more interested in DeFi than crypto or fintech. To me, that shows DeFi 2.0's institutional future.
DeFi 2.0 protocols must handle KYC/AML, tax compliance, market abuse, and cybersecurity problems to be institutional-ready.
Stablecoins gaining market share under benign regulation and more CBDCs coming online in the next couple of years could help DeFi 2.0 separate from crypto volatility.
DeFi 2.0 will have a better footing to finally decouple from crypto volatility
Then we can transition from speculation through overcollateralization to DeFi's genuine comparative advantages: cheaper transaction costs, near-instant settlement, more efficient price discovery, faster time-to-market for financial innovation, and a superior audit trail.
Akin to Amazon for financial goods
Amazon decimated brick-and-mortar shops by offering millions of things online, warehouses by keeping just-in-time inventory, and back-offices by automating invoicing and payments. Software devoured retail. DeFi will eat banking with software.
DeFi is the Amazon for financial items that will replace fintech. Even the most advanced internet brokers offer only 100 currency pairings and limited bonds, equities, and ETFs.
Old banks settlement systems and inefficient, hard-to-upgrade outdated software harm them. For advanced gamers, it's like driving an F1 vehicle on dirt.
It is like driving a F1 car on a dirt road, for the most sophisticated players
Central bankers throughout the world know how expensive and difficult it is to handle cross-border payments using the US dollar as the reserve currency, which is vulnerable to the economic cycle and geopolitical tensions.
Decentralization is the only method to deliver 24h global financial markets. DeFi 2.0 lets you buy and sell startup shares like Google or Tesla. VC funds will trade like mutual funds. Or create a bundle coverage for your car, house, and NFTs. Defi 2.0 consumes banking and creates Global Wall Street.
Defi 2.0 is how software eats banking and delivers the global Wall Street
Decentralized Capitalism is Emerging
90% of markets are digital. 10% is hardest to digitalize. That's money creation, ID, and asset tokenization.
90% of financial markets are already digital. The only problem is that the 10% left is the hardest to digitalize
Debt helped Athens construct a powerful navy that secured trade routes. Bonds financed the Renaissance's wars and supply chains. Equity fueled industrial growth. FX drove globalization's payments system. DeFi's plans:
If the 20th century was a conflict between governments and markets over economic drivers, the 21st century will be between centralized and decentralized corporate structures.
Offices vs. telecommuting. China vs. onshoring/friendshoring. Oil & gas vs. diverse energy matrix. National vs. multilateral policymaking. DAOs vs. corporations Fiat vs. crypto. TradFi vs.
An age where the network effects of the sharing economy will overtake the gains of scale of the monopolistic competition economy
This is the dawn of Decentralized Capitalism (or DeCap), an age where the network effects of the sharing economy will reach a tipping point and surpass the scale gains of the monopolistic competition economy, further eliminating inefficiencies and creating a more robust economy through better data and automation. DeFi 2.0 enables this.
DeFi needs to pay the piper now.
DeCap won't be Web3.0's Shangri-La, though. That's too much for an ailing Atlas. When push comes to shove, DeFi folks want to survive and fight another day for the revolution. If feasible, make a tidy profit.
Decentralization wasn't meant to circumvent regulation. It circumvents censorship. On-ramp, off-ramp measures (control DeFi's entry and exit points, not what happens in between) sound like a good compromise for DeFi 2.0.
The sooner authorities realize that DeFi regulation is made ex-ante by writing code and constructing smart contracts with rules, the faster DeFi 2.0 will become the more efficient and safe financial marketplace.
More crucially, we must boost system liquidity. DeFi's financial stability risks are downplayed. DeFi must improve its liquidity management if it's to become mainstream, just as banks rely on capital constraints.
This reveals the complex and, frankly, inadequate governance arrangements for DeFi protocols. They redistribute control from tokenholders to developers, which is bad governance regardless of the economic model.
But crypto can only ride the existing banking system for so long before forming its own economy. DeFi will upgrade web2.0's financial rails till then.

Coinbase
3 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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Alex Mathers
3 years ago Draft
12 practices of the zenith individuals I know
Calmness is a vital life skill.
It aids communication. It boosts creativity and performance.
I've studied calm people's habits for years. Commonalities:
Have learned to laugh at themselves.
Those who have something to protect can’t help but make it a very serious business, which drains the energy out of the room.
They are fixated on positive pursuits like making cool things, building a strong physique, and having fun with others rather than on depressing influences like the news and gossip.
Every day, spend at least 20 minutes moving, whether it's walking, yoga, or lifting weights.
Discover ways to take pleasure in life's challenges.
Since perspective is malleable, they change their view.
Set your own needs first.
Stressed people neglect themselves and wonder why they struggle.
Prioritize self-care.
Don't ruin your life to please others.
Make something.
Calm people create more than react.
They love creating beautiful things—paintings, children, relationships, and projects.
Hold your breath, please.
If you're stressed or angry, you may be surprised how much time you spend holding your breath and tightening your belly.
Release, breathe, and relax to find calm.
Stopped rushing.
Rushing is disadvantageous.
Calm people handle life better.
Are attuned to their personal dietary needs.
They avoid junk food and eat foods that keep them healthy, happy, and calm.
Don’t take anything personally.
Stressed people control everything.
Self-conscious.
Calm people put others and their work first.
Keep their surroundings neat.
Maintaining an uplifting and clutter-free environment daily calms the mind.
Minimise negative people.
Calm people are ruthless with their boundaries and avoid negative and drama-prone people.

James White
3 years ago
I read three of Elon Musk's suggested books (And His Taste Is Incredible)
A reading list for successful people
Elon Musk reads and talks. So, one learns. Many brilliant individuals & amazing literature.
This article recommends 3 Elon Musk novels. All of them helped me succeed. Hope they'll help you.
Douglas Adams's The Hitchhiker's Guide to the Galaxy
Page Count: 193
Rating on Goodreads: 4.23
Arthur Dent is pulled off Earth by a buddy seconds before it's razed for a cosmic motorway. The trio hitchhikes through space and gets into problems.
I initially read Hitchhiker's as a child. To evade my mum, I'd read with a flashlight under the covers. She'd scold at me for not sleeping on school nights when she found out. Oops.
The Hitchhiker's Guide to the Galaxy is lighthearted science fiction.
My favorite book quotes are:
“Space is big. You won’t believe how vastly, hugely, mind-bogglingly big it is. I mean, you may think it’s a long way down the road to the chemist’s, but that’s just peanuts to space.”
“Far out in the uncharted backwaters of the unfashionable end of the western spiral arm of the Galaxy lies a small unregarded yellow sun. Orbiting this at a distance of roughly ninety-two million miles is an utterly insignificant little blue-green planet whose ape-descended life forms are so amazingly primitive that they still think digital watches are a pretty neat idea.”
“On planet Earth, man had always assumed that he was more intelligent than dolphins because he had achieved so much — the wheel, New York, wars, and so on — whilst all the dolphins had ever done was muck about in the water having a good time. But conversely, the dolphins had always believed that they were far more intelligent than man — for precisely the same reasons.”
the Sun Tzu book The Art Of War
Page Count: 273
Rating on Goodreads: 3.97
It's a classic. You may apply The Art of War's ideas to (nearly) every facet of life. Ex:
Pick your fights.
Keep in mind that timing is crucial.
Create a backup plan in case something goes wrong.
Obstacles provide us a chance to adapt and change.
This book was my first. Since then, I'm a more strategic entrepreneur. Excellent book. And read it ASAP!
My favorite book quotes are:
“Victorious warriors win first and then go to war, while defeated warriors go to war first and then seek to win.”
“Engage people with what they expect; it is what they are able to discern and confirms their projections. It settles them into predictable patterns of response, occupying their minds while you wait for the extraordinary moment — that which they cannot anticipate.”
“If you know the enemy and know yourself, you need not fear the result of a hundred battles. If you know yourself but not the enemy, for every victory gained, you will also suffer a defeat. If you know neither the enemy nor yourself, you will succumb in every battle.”
Peter Thiel's book Zero to One
Page Count: 195
Rating on Goodreads: 4.18
Peter argues the best money-making strategies are typically unproven. Entrepreneurship should never have a defined path to success. Whoever says differently is lying.
Zero to One explores technology and society. Peter is a philosophy major and law school graduate, which informs the work.
Peters' ideas, depth, and intellect stood out in Zero to One. It's a top business book.
My favorite book quotes are:
“The most valuable businesses of coming decades will be built by entrepreneurs who seek to empower people rather than try to make them obsolete.”
“The next Bill Gates will not build an operating system. The next Larry Page or Sergey Brin won’t make a search engine. And the next Mark Zuckerberg won’t create a social network. If you are copying these guys, you aren’t learning from them.”
“If your goal is to never make a mistake in your life, you shouldn’t look for secrets. The prospect of being lonely but right — dedicating your life to something that no one else believes in — is already hard. The prospect of being lonely and wrong can be unbearable.”

Christian Soschner
3 years ago
Steve Jobs' Secrets Revealed
From 1984 until 2011, he ran Apple using the same template.
What is a founder CEO's most crucial skill?
Presentation, communication, and sales
As a Business Angel Investor, I saw many pitch presentations and met with investors one-on-one to promote my companies.
There is always the conception of “Investors have to invest,” so there is no need to care about the presentation.
It's false. Nobody must invest. Many investors believe that entrepreneurs must convince them to invest in their business.
Sometimes — like in 2018–2022 — too much money enters the market, and everyone makes good money.
Do you recall the Buy Now, Pay Later Movement? This amazing narrative had no return potential. Only buyers who couldn't acquire financing elsewhere shopped at these companies.
Klarna's failing business concept led to high valuations.
Investors become more cautious when the economy falters. 2022 sees rising inflation, interest rates, wars, and civil instability. It's like the apocalypse's four horsemen have arrived.
Storytelling is important in rough economies.
When investors draw back, how can entrepreneurs stand out?
In Q2/2022, every study I've read said:
Investors cease investing
Deals are down in almost all IT industries from previous quarters.
What do founders need to do?
Differentiate yourself.
Storytelling talents help.
The Steve Jobs Way
Every time I watch a Steve Jobs presentation, I'm enthralled.
I'm a techie. Everything technical interests me. But, I skim most presentations.
What's Steve Jobs's secret?
Steve Jobs created Apple in 1976 and made it a profitable software and hardware firm in the 1980s. Macintosh goods couldn't beat IBM's. This mistake sacked him in 1985.
Before rejoining Apple in 1997, Steve Jobs founded Next Inc. and Pixar.
From then on, Apple became America's most valuable firm.
Steve Jobs understood people's needs. He said:
“People don’t know what they want until you show it to them. That’s why I never rely on market research. Our task is to read things that are not yet on the page.”
In his opinion, people talk about problems. A lot. Entrepreneurs must learn what the population's pressing problems are and create a solution.
Steve Jobs showed people what they needed before they realized it.
I'll explain:
Present a Big Vision
Steve Jobs starts every presentation by describing his long-term goals for Apple.
1984's Macintosh presentation set up David vs. Goliath. In a George Orwell-style dystopia, IBM computers were bad. It was 1984.
Apple will save the world, like Jedis.
Why do customers and investors like Big Vision?
People want a wider perspective, I think. Humans love improving the planet.
Apple users often cite emotional reasons for buying the brand.
Revolutionizing several industries with breakthrough inventions
Establish Authority
Everyone knows Apple in 2022. It's hard to find folks who confuse Apple with an apple around the world.
Apple wasn't as famous as it is today until Steve Jobs left in 2011.
Most entrepreneurs lack experience. They may market their company or items to folks who haven't heard of it.
Steve Jobs presented the company's historical accomplishments to overcome opposition.
In his presentation of the first iPhone, he talked about the Apple Macintosh, which altered the computing sector, and the iPod, which changed the music industry.
People who have never heard of Apple feel like they're seeing a winner. It raises expectations that the new product will be game-changing and must-have.
The Big Reveal
A pitch or product presentation always has something new.
Steve Jobs doesn't only demonstrate the product. I don't think he'd skip the major point of a company presentation.
He consistently discusses present market solutions, their faults, and a better consumer solution.
No solution exists yet.
It's a multi-faceted play:
It's comparing the new product to something familiar. This makes novelty and the product more relatable.
Describe a desirable solution.
He's funny. He demonstrated an iPod with an 80s phone dial in his iPhone presentation.
Then he reveals the new product. Macintosh presented itself.
Show the benefits
He outlines what Apple is doing differently after demonstrating the product.
How do you distinguish from others? The Big Breakthrough Presentation.
A few hundred slides might list all benefits.
Everyone would fall asleep. Have you ever had similar presentations?
When the brain is overloaded with knowledge, the limbic system changes to other duties, like lunch planning.
What should a speaker do? There's a classic proverb:
“Tell me and I forget, teach me and I may remember, involve me and I learn” (— Not Benjamin Franklin).
Steve Jobs showcased the product live.
Again, using ordinary scenarios to highlight the product's benefits makes it relatable.
The 2010 iPad Presentation uses this technique.
Invite the Team and Let Them Run the Presentation
CEOs spend most time outside the organization. Many companies elect to have only one presenter.
It sends the incorrect message to investors. Product presentations should always include the whole team.
Let me explain why.
Companies needing investment money frequently have shaky business strategies or no product-market fit or robust corporate structure.
Investors solely bet on a team's ability to implement ideas and make a profit.
Early team involvement helps investors understand the company's drivers. Travel costs are worthwhile.
But why for product presentations?
Presenters of varied ages, genders, social backgrounds, and skillsets are relatable. CEOs want relatable products.
Some customers may not believe a white man's message. A black woman's message may be more accepted.
Make the story relatable when you have the best product that solves people's concerns.
Best example: 1984 Macintosh presentation with development team panel.
What is the largest error people make when companies fail?
Saving money on the corporate and product presentation.
Invite your team to five partner meetings when five investors are shortlisted.
Rehearse the presentation till it's natural. Let the team speak.
Successful presentations require structure, rehearsal, and a team. Steve Jobs nailed it.
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