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Another court applies the Howey investment contract analysis to crypto

Republished by Plato



On June 25, 2020, the United States Securities and Exchange Commission brought suit in the Northern District of California against NAC Foundation LLC, also known as the NationalAtenCoin Foundation, and Rowland Marcus Andrade, the company’s CEO, alleging that the company had violated the federal securities laws by selling an unregistered, pre-functional version of an “Anti-Money Laundering BitCoin” token, to be known as AML BitCoin.

Unlike some of the other recent high-profile decisions applying the Howey Test, such as SEC vs. Telegram and SEC vs. Kik, the NAC lawsuit involved detailed allegations of fraud in connection with the sale of pre-functional tokens. Andrade was also indicted by the Department of Justice on charges of fraud arising out of the offering, and Jack Abramoff, a federal lobbyist, pled guilty to participating in the fraud.

On Jan. 8, 2021, Judge Richard Seeborg of the Northern District of California rebuffed NAC and Andrade’s motion to dismiss, finding that the SEC’s complaint had sufficiently alleged that there had been an unregistered sale of securities under the Howey investment contract test. NAC filed its motion to dismiss back in October of 2020, alleging misconduct by the SEC as well as advancing the legal claim that AML BitCoin tokens were not securities under the Howey Test because, among other things, the purchasers had been repeatedly told that they could not expect a return on their investment. The SEC responded colorfully arguing:

“If it looks like a duck, quacks like a duck, and has the genetic makeup of a duck, it is, indeed, a duck. It matters not if the seller puts a sign on the bird exclaiming, ‘this is not a duck.’”

The crypto offering

While many of the facts about the NAC offering are in dispute, some things appear to be settled. In October of 2017, NAC posted a “White Paper of AML BitCoin (AMLBit) and its Business Model” on its website. In this white paper, NAC stated:

“AML BitCoin rests on a privately regulated public blockchain that facilitates… anti-money laundering ‘know your customer’ compliance and identifies criminals associated with illicit transactions, while maintaining and strengthening the privacy protections for legitimate users.”

The white paper also explained that the “privately regulated public blockchain” was yet to be fully developed and that the original purchasers would be issued “ABTC tokens,” which could be exchanged one-for-one with AML BitCoin when the blockchain was finished. The ABTC tokens were, in all other respects, pre- or non-functional.

The white paper proclaimed that both ABTC and the eventual AML BitCoin could be traded “on participating exchanges and trading websites” and conceded there was the possibility of appreciation through speculation. A substantial portion of the white paper explains why, in NAC’s opinion, the AML BitCoins should not be securities.

The actual initial coin offering took place from October 2017 to February 2018, with some sales occurring both before and after that time period. Although the white paper indicated a goal of distributing 76 million ABTC tokens to the public in order to raise $100 million, the actual amount raised was approximately $5.6 million, attributed primarily to 2,400 retail purchasers in the United States. The ABTC thereafter traded on a number of online platforms, but at no time did NAC attempt to register the tokens with the SEC.

Applying the Howey investment contract test

Adopted during the Great Depression, the Securities Act of 1933 obviously does not include crypto or digital assets in the laundry list of things that are to be regulated as “securities.” However, the Securities Act, which requires securities to be registered or exempt from registration in order to be legally offered or sold, does include “investment contracts” within the scope of the securities laws. Crypto assets are generally regulated as securities if they fit within the definition of an investment contract.

In the case of AML BitCoins and ABTC tokens, both the SEC and NAC seemed to agree that the appropriate test for whether NAC had sold an investment contract (and therefore a security) was the one set out by the U.S. Supreme Court in 1945 in SEC v. W.J. Howey Co. As described in more detail elsewhere, the application of the Howey Test turns on the following questions:

  1. Did the purchasers invest something of value?
  2. Was there a common enterprise?
  3. Was the reason for their investment an expectation of profits?
  4. Were the purchasers relying on the essential managerial or entrepreneurial efforts of others?

All of those elements must be present in order for there to be an investment contract, although the Ninth Circuit (in which California is located) has collapsed the last two elements into a single factor.

As is true for most crypto sales, the NAC sales met the first element of this test. Since purchasers of the ABTC had either used fiat currency or other convertible digital assets to pay for the pre-functional tokens, they had clearly invested property of value. Instead of arguing that element, the issues raised by NAC in its motion to dismiss focused on its contentions that there were no allegations of a common enterprise in the complaint and that the ABTC investors had not purchased with a reasonable expectation of profits.

Commonality is admittedly one of the most complicated and confusing aspects of the Howey Test, with courts disagreeing about what is required to prove this element. Some courts look to vertical commonality, where the fortunes of the investors are tied to those of the issuer, often through a profit-sharing arrangement. Obviously, crypto offerings generally do not involve profit-sharing per se because purchasers acquire no stake or interest in the issuer’s business or profits. On the other hand, this is not necessarily the only way in which vertical commonality can be proven. For example, where the fortunes of an issuer and investors are tied together by a joint interest in the success and profitability of an asset that is yet to be developed, some courts have found vertical commonality to be present.

In addition, other courts look to horizontal commonality, which occurs where the fortunes of investors are tied together, even if the issuer’s profits are determined on some other basis. Such horizontal commonality is often proven by showing that investments are placed in a common pool from which profits are distributed on a pro rata basis.

In this case, NAC argued that this element was missing because investors were required to acknowledge that there was no pooled interest in any business or other common enterprise. Again, however, not all cases agree that a pooling agreement is necessary. Some courts have found that there is horizontal commonality where proceeds from a sale have been combined in a common fund. In its brief supporting its Motion to Dismiss, NAC pointed to a Ninth Circuit opinion that the foundation suggested required that the promoters “knew” their funds would be pooled together.

With regard to the expectation of profits from the efforts of others, NAC argued that that there was only a single mention in its white paper of the possibility that “tokens could ‘appreciate in value through speculative trading…’” NAC contends that this comment occurred in the course of explaining why AML BitCoin would operate like Bitcoin (BTC) in that profitability would “rely entirely on the expertise of the AML BitCoin’s holder.” NAC also pointed to other documents, such as the terms and conditions, which required purchasers to acknowledge that purchasers “expect no return on investment.”

The court’s ruling

Before considering the text of the Jan. 8, 2020, ruling, it is worth emphasizing that the decision was not on the merits. Because the court was responding to a motion to dismiss, the judge was required to determine whether the SEC had sufficiently alleged facts that would support a verdict if those allegations are eventually determined to be true. In other words, in making this ruling, the court assumed that the facts as stated in the complaint accurately recite what happened. The court was allowed to draw reasonable inferences from those facts in determining whether the action should continue but was not allowed to consider NAC’s opposing views as to what had been said and what happened.

The court, therefore, focused on whether the SEC sufficiently alleged that NAC had sold securities under the Howey investment contract test. The court considered both of the two elements identified by NAC: whether there was a common enterprise and whether the purchasers were expecting profits as a result of their investment. The court very quickly dismissed the argument that there was no common enterprise here, finding that both investors and the issuer would benefit from the development of the AML BitCoin system and that they would share proportionately in any future increases in value since the foundation retained the rights to a sizeable number of AML BitCoins. In the words of the court:

“The ‘fortunes’ of ICO participants—as measured by either the trading value of their ABTC tokens or the future trading value of AML BitCoin—were ‘linked’ to the ‘fortunes’ of defendants—as measured by the trading value of their ABTC tokens, the future trading value of AML BitCoin, or the general success of their enterprise…”

In a footnote, Judge Seeborg specifically noted that this result was consistent with the recent opinion in SEC v. Telegram, where the court found commonality based on the fact that every participant’s anticipated profits depended on the issuer’s success in developing the underlying blockchain.

With regard to whether the investors “reasonably expected profits based on the efforts of others,” the court concluded that the SEC had alleged “ample facts” to suggest both that there would be profits and that those profits depended on the issuer’s efforts. The profit motive was, according to the court, apparent from the fact that there was no use for the ABTC or AML BitCoin other than to hope for appreciation. Given that the demand for these assets would “rely almost exclusively on market perception of defendants’ work product” the court had no difficulty in concluding that the SEC’s complaint adequately pled that the assets sold by NAC were securities.


The ruling on the motion to dismiss in SEC v. NAC is not groundbreaking. It does not make new law with regard to when crypto assets should be considered to be securities. It does not involve anything like the amount of money at issue in either SEC v. Telegram or SEC v. Kik. It does not even dictate the final outcome in the case itself.

It is, however, an early indication in 2021 that the SEC still has crypto sales in its crosshairs, and it is further confirmation that the Howey Test is likely to control when crypto is regulated as a security, absent intervention from Congress or potentially a change in perspective from the SEC itself.

The views, thoughts and opinions expressed here are the author’s alone and do not necessarily reflect or represent the views and opinions of Cointelegraph.

Carol Goforth is a university professor and the Clayton N. Little professor of law at the University of Arkansas (Fayetteville) School of Law.

The opinions expressed are the author’s alone and do not necessarily reflect the views of the University or its affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.



What Ethereum killer? On-chain data shows competitor networks are still behind

Republished by Plato



Ether (ETH) remains the second-largest cryptocurrency and it absolutely dominates the smart contract industry according to an array of network usage metrics. Even though the network has been overwhelmed by peak activity which is causing median fees to surpass $10, the network effect of its large user and developer base seems to be enough to sustain its position as the second ranked cryptocurrency by market capitalization.

Nevertheless, some key on-chain metrics are beginning to show a potential change in Etheruem’s supremacy, which raises the age old question of whether an “Ethereum killer” will be able to dethrone the top network?

Smart contracts Total Value Locked (TVL) ranking. Source:

As shown above, the Ethereum network vastly dominates decentralized applications (dApps). Due to its high gas fees for transactions, when analyzing the number of active addresses, the Ethereum newtork appears to be at a disadvantage to its competitors.

Over the past week, FLOW blockchain’s NBA Top Shot had almost 80,000 active addresses which is five times larger than Ethereum’s Rarible NFT marketplace or even SushiSwap. Thus, the first data to analyze is the daily active addresses number across each blockchain.

Daily active addresses. Source:

The chart above shows that Tron (TRX) has recently surpassed Ethereum in daily active addresses, although this metric can be easily inflated. The Tron network has virtually zero fees for simple transactions which creates an unfair comparison.

By measuring effective transactions and transfers,it’s easier to exclude the addresses that are not contributing to the network.

Transactions and transfers, adjusted, USD. Source:

By doing this we can see that Tron doesn’t come even close to Ethereum’s numbers, although Cardano’s (ADA) recent price growth has led to a virtual tie between the two.

Oddly enough, the Tron network holds over 14.5 billion of the Tether (USDT) in circulation, which by itself should boost network usage metrics. Meanwhile, Cardano has 90% fewer daily active addresses than Ethereum, yet, both networks handle the same amount of transfers and transactions.

This is especially problematic as Ethereum handles 20 billion Tether tokens and also manages all the transactions of Chainlink (LINK), USD Coin (USDC), Wrapped ETH (WETH), and many others.

ETH, ADA, NEM, NEO, TRX market cap, USD million. Source:

This data should, at least theoretically, be reflected in the market capitalization. Thus, it makes sense for Ethereum to dominate the ranking as no other network is even close to its decentralized applications.

Moreover, when analyzing the transfer and transactions’ value, Ethereum leads by 50 times if we exclude Cardano’s questionable figures discussed earlier.

For the time being, the data suggest that the four “Ethereum killers” analyzed above are unlikely to “flippen” the Ethereum network anytime soon.

The views and opinions expressed here are solely those of the author and do not necessarily reflect the views of Cointelegraph. Every investment and trading move involves risk. You should conduct your own research when making a decision.

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Bitcoin nerves, Tesla told to dump crypto, NFT madness: Hodler’s Digest, Feb. 28–March 6

Republished by Plato



Coming every Saturday, Hodler’s Digest will help you track every single important news story that happened this week. The best (and worst) quotes, adoption and regulation highlights, leading coins, predictions and much more — a week on Cointelegraph in one link.

Top Stories This Week

Bitcoin traders worry as price remains pinned below $50,000

After reaching lows of $43,500 last Sunday, Bitcoin staged a comeback, managing to hit $52,000 on Wednesday. There was optimism that the correction was over and that BTC would now have the chance to return to all-time highs.

Alas, the best-laid plans of mice and men often go awry. Fast forward to this weekend, and Bitcoin is once again struggling to break above $50,000 — a psychologically important milestone. Now, the nerves are starting to set in.

A drop below recent lows of $46,000 could open the door to further downward movement, endangering a bull run that’s been in place for almost a year… at least in the short term. Pseudonymous trader Rekt Capital believes BTC could bottom between $38,000 and $45,000 if this level fails to hold.

Traders are now beginning to speculate that Bitcoin may continue to trade sideways for now. A gloomy macroeconomic picture dominated by rising bond yields and a pullback in tech stocks certainly isn’t helping matters.

Then again, there’s always a metric that shrugs off the gloom… suggesting everything is fine. Glassnode’s Reserve Risk indicator suggests that BTC’s rally is still in the early to middle stage — even after this week’s pullback. Great. Nothing to worry about, then.

Analyst tells Tesla to dump Bitcoin for buybacks as shares plunge

Tesla is now coming under pressure to sell off the $1.5 billion it holds in Bitcoin. Since the electric vehicle maker announced its crypto buy-in, TSLA shares have fallen by a stomach-churning 30.8%.

Gary Black, the former CEO of Aegon Asset Management, tweeted that Tesla would generate “positive momentum” if it bows out of crypto, adding: “Highly unlikely, but shareholders would be very supportive.”

Bitcoin’s price correction has also been hurting MicroStrategy — the business intelligence firm that owns more than 91,000 BTC. MSTR’s share price has tumbled by 52.8% in less than a month.

The company doesn’t seem too worried, though. MicroStrategy bought another 205 BTC this week in a $10-million spending spree that coincided with the latest dip.

While the software company began putting its existing assets into BTC in 2020, back when Bitcoin traded at about $10,000, its latest purchases have yet to break even.

Kings of Leon is releasing an album as an NFT

Buckle yourselves in… we’ve got so much NFT news to get through. One of the more attention-grabbing headlines this week came when Kings of Leon announced it is releasing its eighth album in the form of a nonfungible token.

Three types of NFTs are on offer, with the rarest offering front-row seats to Kings of Leon concerts for life, a personal driver and the chance to hang out with the band before shows.

Frenzied activity in the NFT sector doesn’t end here. The rarest Pepe of them all — “Homer Pepe” — went under the hammer for 205 ETH this week… that’s worth $323,000 at the time of writing. Meanwhile, an NFT made up of 100 individual pieces from 100 different artists sold out within minutes on Rarible.

Aavegotchis — NFTs inspired by the Tamagotchi devices that were oh so trendy in the late 1990s and early 2000s — were snapped up in under a minute. And as sales on NBA Top Shot continue to go through the roof, the executive chairman of the sports merchandise company Fanatics, Michael Rubin, said: “It’s almost a frenzy happening right now.”

If all of this wasn’t crazy enough, an original artwork by Banksy has been burned and turned into an NFT. Ironically, the piece is called “Morons” and depicts buyers at an art auction bidding on a piece emblazoned with the words “I can’t believe you morons actually buy this shit.”

Tether hit with 500 BTC ransom demand, but says it won’t pay

Still dusting itself off after a showdown with the New York Attorney General, Tether is really struggling to catch a break right now.

This week, hackers threatened to release sensitive company documents that supposedly belonged to Tether… unless they were paid a 500-BTC ransom — a staggering sum worth $23.8 million at the time.

Tether announced what was happening on Twitter and declared: “We are not paying.”

The deadline has now passed, but what remains unclear is whether the extortionists are attempting a simple cash grab, or whether it’s all part of a greater effort to undermine Tether and the rest of the Bitcoin ecosystem.

“Either way, those seeking to harm Tether are getting increasingly desperate,” the company added.

No crypto ban in India: Finance minister predicts “very calibrated” stance

There’s been another dramatic twist in the “will they, won’t they” saga of India’s planned crypto ban.

On Saturday, Indian Finance Minister Nirmala Sitharaman said reports that the government is pursuing a blanket ban on cryptocurrencies are overstated. She stressed that regulations won’t be as “severe” as previously reported and that the authorities were determined to take a “very calibrated” stance.

The comments will no doubt come as a relief for crypto businesses and investors in the world’s second-most populous country following years of uncertainty.

At one point, India was considering introducing jail terms of up to 10 years for anyone caught dealing in cryptocurrencies — along with a hefty fine. The country’s central bank also introduced a ban that stopped banks from offering services to crypto businesses, causing several to collapse. Those restrictions were sensationally overturned by the Supreme Court last year.

Sitharaman’s latest remarks are at odds with a Bloomberg report last month that claimed crypto assets would soon be completely banned in India.

Winners and Losers

At the end of the week, Bitcoin is at $48,445.86, Ether at $1,607.45 and XRP at $0.46. The total market cap is at $1,484,740,419,357.

Among the biggest 100 cryptocurrencies, the top three altcoin gainers of the week are Chiliz, Enjin Coin and Flow. The top three altcoin losers of the week are Cardano, 1inch and Stellar.

For more info on crypto prices, make sure to read Cointelegraph’s market analysis

Most Memorable Quotations

“You should look for relative strength when others are weak. Global macro sold off yesterday and BTC did not give a donkey.”

Kyle Davies, Three Arrows Capital co-founder

“Bitcoin is holding up against the macro spectacularly well.”

Lex Moskovski, Moskovski Capital CEO 

“The fact that Bitcoin continues to show strength even with GBTC acting like a resistance band holding it back is very encouraging and shows to me that the overall story, that of accelerating adoption, is still intact.”

Chad Steinglass, CrossTower head of trading

“I think there’s going to be tremendous value created, but also there’s so many people getting into it, I don’t think everyone’s going to be successful.”

Michael Rubin, Fanatics executive chairman

“It’s early stages, but in the future, I think this will be how people release their tracks: When they sell a 100,000 at a dollar each, then they just made $100,000.”

Josh Katz, Yellowheart CEO

“I think Reed Hastings is a very innovative guy and has a lot of creative thinking, and I think he still controls the reins at Netflix, and so I think that might be the next big one to fall.”

Tim Draper, serial investor

“What we are seeing built with crypto today is just proof of concept. As tech continues to get better/cheaper/faster there will be new applications and maybe even something that supersedes what we know as crypto today.”

Mark Cuban, billionaire

“I see HOMERPEPE as the most important NFT in art history because its headline-making sale in 2018 influenced so many of the original crypto artists to believe we could put our art to work building both a market and belief around this new technology.”

Matt Kane, artist

“Is Bitcoin a currency? Property? An asset? Maybe all of the above, I’m going in with a 3% portfolio allocation.”

Kevin O’Leary, Shark Tank investor

“Bitcoin has returned almost 200% (so nearly tripled your money), every single year for 10 years, *compounded*.”


“We’re sending a clear message to the entire industry that you either play by the rules or we will shut you down.”

Letitia James, New York Attorney General

“Those seeking to harm Tether are getting increasingly desperate.”


“There are a host of risks and obstacles that stand in the way of Bitcoin progress. But weighing these potential hurdles against the opportunities leads to the conclusion that Bitcoin is at a tipping point.”


Prediction of the Week

Bitcoin price is going to “infinity” — Kraken CEO

Hodler’s Digest has been home to some pretty sky-high Bitcoin price predictions over the years — $500,000 here, $1 million there. Determined not to be outdone, Kraken’s CEO has gone nuclear… predicting that BTC will be worth “infinity.”

Jesse Powell believes that, one day, humanity will simply give up pricing Bitcoin in U.S. dollars — telling Bloomberg that a $1-million price tag in 10 years’ time is reasonable.

Research from the company he runs is perhaps a little more realistic. Kraken’s latest analysis suggests Bitcoin could next top out somewhere between $75,000 and $306,000.

FUD of the Week 

BitMEX’s Arthur Hayes and Ben Delo negotiate surrender to U.S. authorities

The former CEO of the crypto derivatives exchange BitMEX is in negotiations to surrender to U.S. authorities next month.

Arthur Hayes and fellow executives are accused of violating the Bank Secrecy Act by the U.S. Department of Justice and the Commodity Futures Trading Commission.

Transcripts from a virtual court hearing suggest he’s going to surrender to the U.S. in Hawaii on April 6 — six months after he went on the run.

McAfee faces crypto-related fraud charges from NY court

Criminal charges are piling up for John McAfee. The crypto advocate and internet security pioneer has now been accused of fraud and money laundering conspiracy crimes. Allegations relate two schemes where cryptocurrencies were “fraudulently promoted” to investors.

Prior to today’s news, McAfee already faced charges from U.S. governing bodies for tax evasion and initial coin offerings that he allegedly advertised for compensation without properly informing the public. 

After going on the run from the U.S. government in 2019, McAfee was arrested in Spain in October 2020.

Dev says $31 million Meerkat Finance exploit was a “test” and funds will be returned

Alarm bells rang this week when Meerkat Finance, a decentralized finance protocol based on Binance Smart Chain, lost BNB worth $31 million — hours after it had launched.

The team initially claimed it had been the victim of an exploit but then deleted all its social media channels. Due to the nature of the breach, some believe that a “rugpull” scam had taken place.

But there might be some good news on the horizon for the victims of the exploit, which is one of the largest in DeFi’s short history. A Meerkat Finance developer posted in a newly created Telegram channel and revealed the exploit was a “trial” testing users’ greed and “subjectivity” — adding that the team was preparing to refund all victims.

Best Cointelegraph Features

DeFi who? NFTs are the new hot stars on the crypto block

NFTs are taking over from where DeFi left off, and data suggests asset tokenization will dominate 2021.

Crypto Pepes: What does the frog meme?

Cointelegraph Magazine talks to BarnBridge founder Tyler Ward, who has inadvertently created a Pepe the Frog NFT meme craze.

Pricing the hype: Crypto companies valued at billions as market booms

Crunching the numbers: Analysts and industry experts weigh in on crypto firms like Coinbase and Kraken being valued in the billions.

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Polkadot Price Analysis: 06 March

Republished by Plato



Disclaimer: The findings of the following analysis are the sole opinions of the writer and should not be taken as investment advice

Polkadot‘s market has grown significantly over the past few months, both in terms of value and fundamentals. In fact, DOT’s growth can be evidenced by the fact that Open Interest in Polkadot’s Futures market has been surging lately. At the time of writing, DOT was trading at $33.24, with the altcoin having a market capitalization of $30.62 billion.

Polkadot [DOT] 6-hour chart

Source: DOTUSD on TradingView

Polkadot’s six-hour chart [DOT] highlighted that of late, its value was shrinking within a descending triangle. DOT’s falling price was supported at $30.82, but the market trends suggested that a further drop in value could be imminent.

Such an observation would make Polkadot a strong bet for short-traders.


The Bollinger Bands suggested that there was barely any volatility in the DOT market as the bands converged. However, the falling price could have contributed to the bands converging. Meanwhile, the Signal line was moving above the candlesticks as the sellers continued to sell.

With the altcoin’s price testing the support, the bearish trend might lead to a drop in the price of the digital asset. Further, the MACD indicator was highlighting strong bearishness in the market, with the MACD crossing under the Signal line. Ergo, the prevailing market trends seemed to be siding with the sellers, something that could result in a sell-off in the near-term.

While the Relative Strength Index bounced from the overbought zone, it was observed to be approaching equilibrium, at press time. However, this seemed to suggest that buyers were trying to level the market.

Crucial levels to look out for

Entry-level: $30.89
Stop-level: $35.01
Take profit: $25.42
Risk to Reward: 1.33


Polkadot’s six-hour chart highlighted a bearish trend extending across the market. This bearish trend may result in the value of the digital asset dropping to $30. However, in the meantime, the altcoin’s price may continue to oscillate within the descending triangle and around its support level.

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