What is the Howey Test and Why Does It Matter In Crypto?

Published Nov 8, 2022, 10:00 AM

One of the bigger fights in crypto right now is over the definition of a security - what counts as a security, and who gets to decide - and therefore regulate - that. This isn’t just about semantics: the answer to that question affects trillions of dollars of assets in the United States, including crypto assets.

In December 2020, the SEC accused Ripple Labs, issuers of the Ripple token, of having conducted “an unregistered, ongoing digital asset securities offering that raised $1.3bn.

Nearly two years later, that fight is still ongoing. Most recently, Ripple asked the court involved to dismiss the SEC’s complaint. Among other things, Ripple does not agree with the SEC’s assertion that its token counts as a security. 

Who’s right? And what are the consequences, either way?  Bloomberg reporters Matt Robinson and Chris Dolmetsch and attorney Elizabeth Davis join this episode to explain.

This is Bloomberg Crypto, a daily Bloomberg I Heart podcast, and I'm Stacy Marie Ishmael, Managing editor of Crypto for Bloomberg News. It's Tuesday, November eighth. One of the bigger fights in crypto right now is over the definition of a security, what counsels the security, who gets to decide what counts, and of course who gets to regulate once that decision is made. This isn't just about semantics. The answer to these questions affects trillions of dollars of assets in the United States, including and increasingly crypto. In December, the SEC accused Ripple Labs, the issuers of the Ripple token, of having conducted quote an unregistered ongoing digital assets secure he's offering, and offering that raised one point three billion dollars. Ripple, of course, did not agree with the SEC's assessment, and that fight is still ongoing. Most recently, Ripple asked the courts involved to dismiss the SEC's complaint entirely, among other things, on the basis that it's token x RP does not count as a security. So who's right and what are the consequences either way? Here to explain a Bloomberg reposts as Matt Robinson and Chris Dolmac an attorney at law Liz Davis. Hey, listeners, I'm Dust the one Drett from the Bloomberg Crypto podcast team. The U S Security is an exchange commission is one case that could impact another case we mentioned in today's show involving Ripple Labs. The U S. District Court has ruled at the company in question, Library was selling its token as an unregistered security. In a response on Twitter, Library said that it's not giving up, so the ruling could be appealed. We recorded this show before the news broke, which is why it is not mentioned. For more information about the Library decision, go on over to Bloomberg Law. Now back to our show, Matt, Liz, Welcome to the show. We don't often get to talk about Florida on the show, but today we're gonna get to talk about Florida. And the reason that we're going to talk about Florida is because of this dude who was not exactly an international amount of mystery, but certainly quite a character, a citrus farmer, a person who attempted to run for Florida governor named William John Howe. He died in and yet we invoke his name when we're talking about assets in twenties twenty two, Matt, why is this well Bill Howie. Yeah, as you said, he got to Florida around Uh. Prior to that, he was an interesting guy. He sold life insurance that's sixteen. He actually developed land in Oklahoma tied to railroads. He also started a Howie car. I think it's about sold about seven of them, so that didn't last. And then he found his way to Florida around the nineteen tens, started buying up land, you know, planting citrus groves and starting building that out. The way he was funded that, in part was by bringing these rich investors from the North. He'd kind of schmooze them at his hotels showing these orange grows. He became very wealthy. His mansion is still there. Uh if actually it's a it's a national historic place. You can also get married there, I think, if you'd like. But why do crypto people care about him? So so part of the way he made his wealth was the way he funded this orange growth business. So the idea is that he would say, hey, I'm gonna sell you this land. But part of that is, I'm going to develop it for you. So you gave me money now, and then you know, I'll develop, I'll sell it, and then you'll get a return on that investment. Now it starts to sound more like you know, a security something that like you give someone money and then there's an expectation that you're going to get some profit back. So he did this for years, and then the SEC sued him saying well, that's that's our universe, that's our world, Um, you should be registered with US. Goes all the way up to the Supreme Court, and that decision in goes through you know, sort of these steps to say, okay, when does something When does this exchange of money become a security? And Liz, it's now we're two. Why are both US regulators and cryptal lawyers of all stripes still fighting about this today? The how we test is sort of the standard that the SEC looks to uh in determining whether something constitutes an investment contract um. And if it's an investment contract, then it needs to be registered with the SEC as a security. So generally speaking, like all securities like stocks, bonds, investment contracts that are offered in the United States, must be registered with the SEC, subject to some exceptions. Um, you know, registration with the SEC is to make sure that it's for investor protection right, to make sure that investors are sold investments that include all of the appropriate disclosures and are subject to regulatory scrutiny to protect investors. So, as Matt discussed, you know, the how we test is sort of the standard test for determining whether and offering is an investment contract and therefore security and that needs to be registered. And there are just sort of parallels that the crypto industry is looking at in terms of the initial coin offerings, how they were being offered to the wide audience, the wide public, you know, who are the investors, and the parallels are being drawn from there to see whether you know, those offerings in those initial coin offerings or for a blockchain project fundraising that's done there constitutes an investment contract that would been under Howie when you say like registering with the SEC, do you just like send in the postcard to the regulators And you're like, I'm going to do a thing, Like what does that mean? In practice? Sure? No, registration means you know, you have to fill up the requisite forms there are a law of disclosures that need to be made to the SEC. And so it is a lengthy process, but one that the SEC, you know, would expect folks who are offering investment contracts, whether they are orange Grows, interest in orange Grows or cryptocurrency, for them to comply with. Now that all sounds you could argue reasonable. It might be work, it might be expensive, or is it going to get paid? Why then, do people object to having their thing be considered a security for the purposes of the how we test? I think because it's a fact and circumstances test. Right. When you say facts and circumstances, what does that mean? It depends on what the how the token was being offered, what the situation was, you know, the context in which it was distributed to the public and may be made available to the public. And I think it depends on who the promoter was or the entity was that was offering to it, what disclosures they may what comments did they make with respect to the problems that the how these tests? Was there an expectation of profit that was being made known to those potential purchasers that were going to invest in the security? And Matt why is this such a big deal right now? It's such a big deal because once something is a registered there's a lot of other things that need to take place. You're selling a security and it trades on an exchange, that exchange needs to be traded, right, and then if it's security, you know, like how do you protect inside information so that your employees don't trade against So there's just like it opens up a whole bunch of different regulatory hoops people need to jump through. And I think part of the reason there's been reluctance in the industry is that the whole ethos is to you know, we're we're against institutions where we're trying to you know, do things ourselves and not to have some sort of intermediary. So this this law or this test from you know, the forties is kind of hampered it because the way that it was written is to sort of encompass a lot of things so that the investing public has someone you know, overlooking things to make sure that people are doing the things that say they're going to do. Is there anything to the criticism that you know, these sorts of registration steps can hamper activity in some way, like have there been examples in other assets of concern about the applicability of these sorts of tests. So yeah, I mean I think if you look, you know, I used to be at the CFTC, and you know, foreign currency for X was sort of the tool of choice we used to say over there in terms of fraud, right. It was just another method in which folks who wanted to defraud people out of their money was being used. And you know, there was provisions added pursuing too, don Frank that gave the CFTC jurisdiction over certain leveraged and finance margins transactions for retail spot for X, And so you know, that's a similar parallel if you want to look at that. The concern I from the regulators is that there are bad actors that are out there, right, And I think it's fair to say that a lot of folks in the crypto industry recognize there are bad actors out there, and they don't want them, you know, in the industry because it's giving them a bad name. But unfortunately, because we're in this period of regulation by enforcement where we don't have regulatory clarity, you know, a lot of the laws who are being made based upon you know, the fraud that that's out there with crypto being used as that vehicle. It's just as a sort of a final question obviously, like the question of does the how we test apply is like very large and very complicated. But are there any other kind of similar questions that folks are encountering as they try to fit crypto into existing regulatory models? Sure? I mean, I think right now, because we don't have a central you know, regulator that oversees all the financial markets and the banking systems like some other countries do, one of the biggest questions that we're seeing is, you know, is it a security under the SEC's perview or is it a commodity under the CFTCS perview. You know, hopefully some of the legislation that's pending right now, that bi partisan legislation that's pending might get to, you know, drawing some lines between the two of that. But I you know, my mind, in addition to the how we test, I think the common question that we see all the time is just like is this a security? Is this a commodity? Or you know, how do I structure my projects such that I fall within the jurisdiction of the CFTC as opposed to the SEC or vice versa. Got it. Well, thank you both, really appreciate you taking the time. Thank you. Coming up, we'll be talking to bloombergerpors Crystal Mac how one crypto firm is fighting the SEC. It's the SEC versus Ripple. We'll be right back. We just heard from Bloomberg Reports and Matt Robinson and from attorney at law Elizabeth Davis, and now I'm happy to be able to introduce Bloomberg reporter Chris Dolmetsch on how one crypto firm is fighting the SEC. Chris, welcome to the show. Thank you. So when we talk about this SEC case, we're talking about the folks at Ripple Labs, who are I would not say they're not super pleased with the SEC. What's this fight about? So, the fights about whether they should have registered x RP as a security right, which would have obviously required them to put in a lot of registration materials UM material information about their business for investors that investors can use to decide whether to invest or not UM. You know, it's a common obviously practice among public companies and things like that, who are obviously come under the purview of the SEC. But when it comes to crypto, they kind of feel I think not just Ripple, but I think a lot of these people. If you look at the Bitmax prosecution, I think you understand that they feel that they are not a traditional company that needs to bide by those rules, that that crypto is really a commodity that can be traded freely. It is determined by the market price rather than UM. You know the efforts of others. How long has this fight been going on. It's been going on since I believe the first the lawsuit was filed in September was one of the first UM one of the first big cases we saw from the SEC after the pandemic has obviously that put a big crimp in UM. The number of federal actions that were brought. The courthouse kind of shut down for an entire year. UM. So I think one of the reasons this is taken so long to get to this point is because there's robust discovery. They've exchanged a lot of documents. There's been fights over documents, UM. But the pandemics certainly hurt UM the pace of this case. Why does Ripple maintain that they are not a security like, what is the specific argument they have been trying to make. So they've been saying that x RARP was created but basically given away, it was given away to the community and therefore has no intrinsic security value. They say, what they've received, Yes, there's been x RP sales, We've sold tokens, we've given tokens to Ripple that have been distributed to the public. But they say we don't have nothing. Is there's no central person that is making money off x RP. One of the other big things about you know this particular cases. There have been so few other examples like this, and so there is a lot of speculation that whatever happens, if Ripple prevails, if the sec prevails, this could be potentially precedent setting for a lot of crypto What would those precedents look like? Would it established that yes, certain types of things are or aren't a security? Just like in non lawyer terms, what are people waiting to see? There are a number of factors that go into whether or not something is a security, but in this case, and in most crypto cases, it really depends on the individual currency itself or the crypto or whatever. The parameters of of the individual token or the issuing or what have you, you know, beyond traditional securities and what we've had concepts of that. This could kind of expand that definition a little bit and make it more so that individual tokens could be considered securities in a broader sense. Um, just given what the framework surrounding them. Um. It may not, like, you know, bring the hammer down on the entire industry, but it could severely limit what they kind of do and increase their gulatory exposure. And it may not be entirely parallel, but I kind of look at this like if you look at the early days of the airlines, Um, there was it was kind of the wild West. People were flying. You can get on a plane and might crampy, right, And in order to have the public have you know, confidence in getting on an airplane and have it be a robust industry, regulators you know, had a vested interest in kind of making it safer and making it obviously safer to the public. And I think that's what the SEC wants to do here. Cryptocurrency is obviously not going away. It is a new market and regulators are trying to figure it out. But the Howie test was really not used excited that much. It always came to whether something fell under the regulation of the SEC. Now, I think the SEC sees a little bit of and the Justice Department sees a little bit of expanding need a need to expand on that definition and at least get the courts to see if it agrees with what they're saying. And in that aspect, I think this is a big test case for them and the crypto industry in general. As a part of this being a big test, as you say, for the rest of the crypto industry, you know, we'll get a lot of emails being like coin base as filed and amicus brief and support of Ripple. What's an amicus brief? So amicas brief is a friend of the court um they file basically in support of whatever your position is. There's been a number of them with Ripple, and in fact, the whole industry seems to be behind Ripple on this. We had coin based recently, we had the Blockchain Association file last week and support. I wouldn't say it's unusual, but you have a lot of people lining up behind Ripple, and that is unusual for a n SECC. You don't usually see this amount of public engagement and industry engagement. Certainly we have that with limited cases. We had the case We're City Bank actually accidentally sent a million dollar a billion dollars to some Revlankas absolutely bonkers. But in terms of like how those cases are tried, that's the parallel that I draw here, and that you had a lot of the industry saying, hey, this could ruin the syndicated loan industry if you force people to do this. But in in this aspect, they have not brought criminal charges against Ripple Um, and many people have asked why, and that's a good indication that this may be something that they want to test the waters to see how far they can get on the civil side or what you know, the law. The judges will agree with them and maybe eventually get up to an appeals court that could further define what's the security and to find if really how he tested something shouldn't be applied here. If there's something new that probably will be the end result of this is there's gonna be need to be um you know, laws that will define clearly what the industry can do and what it can't do. Maybe in a future time, we'll be talking about the ripples has to not just the how he tought. Sure, exactly, very good point. Thank you, Chris. You can find more of Crystal Max for pausing on the Bloomberg terminal, on Bloomberg dot com and on Twitter. He's at Chris Dolmac that c H R I S D O L M E T S H on the next episode of Bloomberg Crypto. The people who most actively believe in Web three, the venture capitalists, have frequently argued that it's a system designed to benefit and reward creators, artists, musicians, writers, creatives of all stripes. The reality is as always more complicated, especially when it comes to royalty payments. This is Bloomberg Crypto, a daily podcast from Bloomberg and I Heart Radio. For more shows from I Heart Radio, visit the I Heart Radio app, Apple Podcasts, or wherever you get your podcasts. Send us your comments, questions, or suggestions for the show to Crypto at Bloomberg dot net or find us on Twitter. We're at Crypto. The supervising producer of Bloomberg Crypto is Vicky Verglina. Our senior producer is Janet Babin. Our producers are Mohammed Faruk and Sharon Barriro. Our associate producers are Ty Butler and Moses on Them. Desta wonder At is our engineer. Original music by Leo Sidron. I'm Stacy Marie Schmal We'll be back tomorrow.

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