The Howey Test: Are Crypto-Assets Investment Contracts?

Transcription

1 University of Miami Law School University of Miami School of Law Institutional Repository University of Miami Business Law Review The Howey Test: Are Crypto-Assets Investment Contracts? Justin Henning Follow this and additional works at: Part of the Law and Economics Commons, and the Securities Law Commons Recommended Citation Justin Henning, The Howey Test: Are Crypto-Assets Investment Contracts?, 27 U. Miami Bus. L. Rev. 51 () Available at: This Note is brought to you for free and open access by University of Miami School of Law Institutional Repository. It has been accepted for inclusion in University of Miami Business Law Review by an authorized editor of University of Miami School of Law Institutional Repository. For more information, please contact

2 With innovation always comes unknowns. Blockchain technology and crypto assets are no different. Often times, innovators are so worried about getting their product to market or scaling at mass that they overlook the legal ramifications of their innovations. As Mark Zuckerberg infamously said, move fast and break things. Facebook was in no way alone in this style of innovation. However, with respect to crypto assets, the SEC has stepped in and is attempting to prevent the break things aspect. One of the major issues relating to crypto assets is that many people still do not understand what they are, or how the underlying technology works. At the moment, we do not know what to classify crypto assets as: property, commodities, or something else. If the SECdetermines that crypto assets are investment contracts, the regulation that follows is at risk of putting stranglehold on the underlying innovation and technology. It becomes an issue of balancing consumerprotection andinnovationforsociety. SECv. W.J. Howey Co. laid out a pronged test to determine whether a transaction is an investment contract, subjecting it to securities laws. This note examines the Howey Test to explain why two popular crypto assets, Bitcoin and Ethereum, are unlikely to satisfy the Howey Test, and briefly addresses the need for clarity in this area.

3 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW A. Bitcoin... B. Ethereum... HOWEY A. Investment of Money in a Common Enterprise... B. Profits Solely from the Efforts of Others... SEC v. W.J. Howey Co SEC Issues Investigative Rep. Concluding DAO Tokens, a Digital Asset, Were Securities, What is a DAO? Id

4 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW Howey Howey Howey Howey. See id See Hashing It Out: Problems and Solutions Concerning Cryptocurrency Used as Article 9 Collateral See Regulating Cryptocurrencies in the United States: Current Issues and Future Direction See id See, e.g. Coining Bitcoin s Legal-Bits : Examining The Regulatory Framework for Bitcoin and Virtual Currencies

5 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW Financial Times Lexicon See supra Id See Someone in 2010 Bought 2 Pizzas with 10,000 Bitcoins Which Today Would Be Worth $20 Million Over $9 billion wiped off bitcoin s value after SEC postpones key decision on a cryptocurrency ETF Will ETF Approval Really Lead To A Flood Of Crypto Cash? See id. See supra supra see also supra

6 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW See Id See Bitcoin: An Innovative Alternative Digital Currency See id. See See How Bitcoin Mining Works See id. See id. See id.

7 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW A. Bitcoin See Amuial supra See 51% Attack See id. Id See Are 51% Attacks a Real Threat to Bitcoin? See supra See supra See supra See supra See supra

8 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW B. Ethereum See supra See supra Bitcoin is all the Rage But is it Worth the Risk? Understanding Smart Contract Mechanics See DAO Prompts SEC to Examine ICOs Bitcoin is the new but blockchain investor reveals why ethereum is MORE IMPORTANT

9 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW What is Ethereum? See id. See id. See supra Smart Contracts: The Blockchain Technology That Will Replace Lawyers See id

10 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW See id. See supra Ethereum Platform - What You Should Know See supra See Understanding the Ethereum ICO Token Hype

11 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW SEC v. Howey. Id

12 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW Howey HOWEY A. Investment of Money in a Common Enterprise Howey SEC v. Edwards See Howey

13 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW Howey Howey Reves v. Ernst & Young investments Reves Howey SEC v. SG Ltd. See Id See id. See. See id.

14 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW Deckebach v. La Vida Charters, Inc. of Florida Howey See id. See id. See id.

15 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW SEC v. Koscot Howey See, e.g. Id See id. See id. See id.

16 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW arguendo See See. See id. See See

17 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW Deckebach Deckebach See See See id. See id.. See

18 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW Howey Coinbase Fees See id. See supra

19 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW B. Profits Solely from the Efforts of Others Howey SEC v. Glenn W. Turner Enterprises, Inc. Howey See Id See Death of Protostarr ICO: legal review by BlockSharks After Contact By SEC, Protostarr Token Shuts Down Post-ICO, Will Refund Inv rs

20 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW Howey Howey See id. See supra See supra See SEC Concludes that Slock.It s DAO Dig. Currency Tokens are Sec. See Understanding the DAO Attack See id. See generally supra See supra

21 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW Howey Howey See See See How to Make Money with Bitcoin: 10 Ways to Earn Cryptocurrency See What is Bitcoin? The Most Comprehensive Guide Ever! See Howey See supra

22 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW Howey See See Securities Act of 1933 see also Securities Act of 1934 See Dodd-Frank Wall Street Reform and Consumer Protection Act See Considering an IPO to fuel your company s future?

23 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW See What Did We Learn From the Dotcom Stock Bubble of 2000? see also The cryptocurrency bubble is strangling innovation supra supra See Bitcoin buyer beware: US SEC warns extreme caution over cryptocurrency investments See SEC Files Fraud Charges Against ICO Organizer See Are ICOs The New Startup Life Blood?

24 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW See Why Is Going Public So Costly? See supra

25 UNIVERSITY OF MIAMI BUSINESS LAW REVIEW Howey Howey See generally See See See See supra