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New interpretation of US Howey test gaining ground

The crypto community celebrated a court victory on January 30 when the United States Securities and Exchange Commission (SEC) admitted at a hearing on remedies in the LBRY case that the secondary sale of its LBC coin was not a sale of securities. John Deaton, who is representing Ripple in court in the SEC case against him, was so excited that he made a video for his Twitter-hosted CryptoLawTV channel that evening.

Deaton, a friend of the court, or amicus curiae, in this case, recounted a conversation he had with the judge that day. “Look, let’s not pretend. Selling on the secondary market is a problem,” and then “I brought Lewis Cohen’s article to him,” Deaton revoked.

Deaton was referring to the paper “The Inescapable Modality of Securities Law: Why Fungible Crypto Assets Are Not Securities” by Lewis Cohen, Gregory Strong, Freeman Lewin and Sarah Chen of the law firm DLx, which Cohen co-founded. Deaton praised the work before, in November 2022, when it was filed in the Ripple case, in which Cohen is also amicus curiae.

There is more and more buzz around the paper. That appeared at the Social Science Research Network preprint repository on December 13. When Cointelegraph spoke with Cohen in mid-January, he said the paper was the most downloaded in the securities law category on the website, with 353 downloads after about a month. That number more than doubled over the next two weeks. The paper has also gained attention in mainstream and legal crypto-related media and podcasts. Its unusual title is a nod to James Joyce Ulysses.

Cohen’s paper takes a close look at one of the timeless dictums of crypto-securities law: Securities are not oranges. This refers to the Howie test, established by the US Supreme Court in 1946 to identify a security. The paper thoroughly examines the Howey test and proposes an alternative to the way the test is currently applied.

When Howey met Cohen

Not everyone is in favor of applying the Howey test to crypto assets, often arguing that the test works better for prosecuting fraud cases than assisting with registration. Cohen alone agreed with this position in the February 3rd podcast. Nonetheless, the paper’s authors do not dispute the use of the Howey test — which arose from the Orange case — on crypto assets.

A brief summary cannot even come close to covering the breadth of the paper’s analysis. The authors discuss SEC policy and cases involving cryptocurrencies, relevant precedents, the Securities and Exchange Acts, and blockchain technology in just over 100 pages, plus annexes. They reviewed 266 federal appellate and Supreme Court decisions — every relevant case they could find — to reach their conclusions. They invite the public to add any other relevant cases to their list on the LexHub GitHub.

The Howey test consists of four elements often called prongs. Under the test, a transaction is a security if (1) it is an investment of money, (2) in a joint venture, (3) with the expectation of profit, or (4) it is derived from the efforts of others. All four test conditions must be met, and the test can only be applied retrospectively.

Cohen and co-authors argue, in very basic terms, that “fungible crypto-assets” do not meet the definition of a security, with the rare exception of those that are securities by design. This is the insight captured in the proverb about oranges.

The paper’s authors go on to say that an offering of a crypto asset in the primary market can be a security under Howey. However, they note: “To date, Telegram, Kik, and LBRY are the only cases that have been thoroughly briefed and decided on cryptocurrency crowdfunding.”

They were referring to the SEC’s lawsuit against messaging service Telegram, alleging that its $1.7 billion initial coin offering was an unregistered securities offering, which decided in favor SEC’s 2020 SEC case against Kik Interactive also involved token sales and decided in favor SEC in 2020 SEC too won its unregistered securities sale case against LBRY 2022.

Related: Consequences of LBRY: Consequences of the ongoing cryptocurrency regulatory process

The list’s biggest innovation is its view of crypto asset transactions on secondary markets. The authors argue that the Howey test should be re-applied to the sale of crypto assets on secondary markets, such as Coinbase or Uniswap. The authors write:

“Securities regulators in the US have attempted to address many of the issues that have arisen from the emergence of crypto-assets […] generally through the application of the Howie test to transactions in these assets. However, […] regulators have gone beyond current jurisprudence to suggest that most fungible crypto-assets are themselves ‘securities’, which would give them jurisdiction over virtually any activity that takes place with those assets.”

The authors argue that crypto assets generally will not meet Howey’s definition in the secondary market. Property ownership alone does not create “a legal relationship between the token owner and the entity that implemented the smart contract creating the token or that raised funds from other parties through the token sale”. Thus, secondary transactions do not fulfill the second prong of Houi, which requires a third party.

The authors conclude, based on their comprehensive review of the Howey decisions:

“There is no current basis in the law relating to ‘investment contracts’ to classify most fungible crypto-assets as ‘securities’ when transferred in secondary transactions because an investment contract transaction is generally not present.”

What does it all mean?

The effect of the paper argument is to separate the issuance of the token from the transaction with it on the secondary market. The paper states that token creation may be a securities transaction, but subsequent trades will not necessarily be securities trades.

Sean Coughlin, principal at law firm Bressler, Amery & Ross, told Cointelegraph: “I think he [Cohen’s] taking ownership of the fact that releases [of tokens] will be regulated and he tries to propose a way to make it happen [a token] trade in an unregulated manner.”

Coughlin’s colleague, Christopher Vaughn, had reservations that the paper was “disingenuous” in places.

He said: “It ignores the reality that everyone who has ever traded cryptocurrencies knows, which is that these pools of liquidity and these decentralized exchange transactions don’t happen unless the token issuer enables them.”

Regardless, Vaugh praised the paper, saying, “I’d love for this to be the be-all and end-all of crypto.”

John Montague, an attorney at Montague Law who focuses on digital assets, told Cointelegraph that custody issues could complicate Cohen’s argument, particularly how the self-hedging of crypto assets affects Howey’s investment.

Montague acknowledged the high quality of the paper’s scholarship, calling it:

“The industry’s most monumental piece of thought on securities law perhaps ever, […] definitely since Hester Peirce’s safe harbor proposal.”

In her final version of the proposal, SEC Commissioner Peirce suggested network developers are granted a three-year exemption from the registration provisions of federal securities laws to “facilitate participation in and development of a functional or decentralized network”.

recently: Crypto and psychedelics: Clarifying regulations could help industry grow

“One thing I like about the cryptocurrency world is that it’s contradictory,” Cohen told Cointelegraph. He said he hoped to “raise the level of discussion” with the list. It was not met with much resistance in the responses of the public. Still, there were expressions of cynicism.

“You are a novelist. In cryptogram you have found a character that is best explained by law,” one network programmer commented on Twitter.

“Intelligent legal opinions rarely move the needle on SEC opinions or enforcement cases,” financial services executive he said is LinkedIn.

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