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Does the Howey Test Apply to Crypto?

All Cryptocurrencies

by COINS NEWS 92 Views

The SEC has been going after crypto for several years. They claim that all tokens and coins, besides Bitcoin, are securities because they satisfy the 4 prongs of the Howey Test. These are 1. money must have been invested, 2. in a common enterprise, 3. for a reasonable expectation of profit, and 4. with a reliance on the efforts of others. So corporate stock is a common example. A person buys a stock in a company run by others with the expectation of receiving a share of profits or the stock appreciating in value.

When it comes to crypto, it's not so clear. Bitcoin does not satisfy the Howey Test, and Gensler from the SEC has said as much because it is sufficiently decentralized. This means there is no common enterprise. Ripple was sued because the SEC claimed investors bought XRP with the expectation of making a profit from the actions of Ripple, making it a security. However, they recently partially lost the case, as the judge ruled that XRP was not a security in secondary market sales.

So which cryptos are securities then? It could be argued that a lot of highly centralized coins and tokens are securities. Meme coins, for example, have no value derived from actual use cases, and people only invest in them with the expectation of profit, which often comes from the actions of a small group of people or organization. Right? If this is the case, then only a handful of properly decentralized cryptos are not securities. Most cryptos are too centralized to not satisfy the 4 prongs of the Howey Test.

Or am I wrong here? If we use the Howey Test, which probably needs to be updated to include crypto, as the judge of what is a security, then most cryptos would seem to satisfy the requirements.

submitted by /u/ChucklesFreely
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