Howey Test
Candlefocus EditorWhen considering a blockchain or digital asset project, the Howey Test is an important tool to determine if it is legally classified as an “investment contract”. The key question is whether there is an investment of money in a common enterprise with a reasonable expectation of profits derived from the efforts of others.
The guiding principle in the test is the concept of an “investment of money”. The SEC has noted that money in this context does not just refer to the traditional understanding of money or currency, but also contemplates investments made through investments of other means, such as, for example, goods or services.
The second factor under the Howey Test requires there to be an “expectation of profits”. The profits need not be realized for the test to be applied, as long as there is a reasonable expectation of profits. The SEC has noted that the investor must demonstrate a realistic expectation of a return by examining the objective elements of that expectation, such as the nature of the enterprise and the parties’ relationship.
The third element of the Howey Test requires the existence of a “common enterprise”. The term “common enterprise” is not defined in the case, and is instead a flexible test which has to be determined by looking at the circumstances of the investment scheme. The SEC has noted that “common enterprise” can refer to either a horizontal relationship (where investors’ profits depend on the pooling of the investors’ efforts) or a vertical relationship (where profits depend on the efforts of a promoter, third party or other participants).
The fourth prong of the Howey Test requires that profits are “derived from the efforts of others”. This requires the investors to have reliance on the efforts of the promoters or a third party. In the context of blockchain and digital assets, this can include the work done by developers to maintain the project and the network, or the efforts of the promoters to market the product or manage third party relationships.
In short, the Howey Test provides a useful tool for determining the legal definition of an “investment contract” for digital assets, blockchain projects and ICOs. While there is no single formula for meeting the Howey Test, an understanding of the key concepts of the test and its implications is important for projects and investors engaging in the digital asset space.