Categories
Financial talks at dinner table Securities Investment

The Howey Test & Investment Contract

After their conversation yesterday on securities, Greg asked everyone, except Cleo, to do a bit of research on their own about the “Howey test” that the US Supreme Court used to define an investment contract, which in return will define securities. Today they come together at the dinner table again to present and trade their findings besides eating.

Security law & regulations this post focuses on

Greg: So, what did you guys find on the Howey Test? Who wants to tell us the background story behind the Howey Test?

Lily: Let me try it. According to the piece I’ve read, a Florida-based Howey Company sold land with citrus groves to buyers. They then asked the buyers to lease their land back to them, so they could grow and sell the citrus and split the money with the landowners.

Kimberly: I smell something strange. Why can’t Howey just use the land they own to grow and sell citrus? What’s the point of selling the land and then leasing back?

Lily: I wondered about the same. There must be something beneficial from doing the leaseback deal, most likely the company thought they did not have to register the transaction with SEC, and that was where their legal troubles started.

Jason: Wait! What is SEC?

Lily: Its full name spelt out is U.S. Securities and Exchange Commission. It’s a government agency in charge of regulating the securities markets and protecting investors. Right, dad?

The SEC Seal

Greg: You got it. It’s created 1934 by the Securities Act of 1933 and Securities Exchange Act of 1934, the two milestone laws in securities. Just remember this: Much of the securities rules and regulations didn’t exist until after the Great Depression in 1920s and early 1930s. They are the lessons learned by this country from the crisis.

Lily: Yeah, so in 1946, the SEC sued Howey because it believed the citrus deal qualified as an investment contract and therefore, Howey should have registered with SEC. The case went all the way to the U.S. Supreme Court.  

Emily: I’m surprised that the Supreme Court agreed to hear it. To me it’s a small case.

Greg: Well, the Supreme Court in 1946 was not the Supreme Court today. What is important then is different from what is important now. It all changes by time.

Lily: After the court hearing it was decided that Howey should register with the SEC because the citrus business was an investment contract. The four conditions listed by the Supreme Court ruling then became one of the most famous case laws of this country.

The U.S. Supreme Court

Kimberly: I find it interesting that the whole definition of securities hinges on this single test. Mom was right when she called this Howey test “Almighty” yesterday.

Emily: That’s because the ruling of the Supreme Court was rich, containing four elements if I remember correctly.

Kimberly: You are right, I have written these elements down: The first is investment of money; the next is into a common enterprise; then investors must have expected profits and finally the profit is solely generated by efforts of others, not by the investors.

Greg: Since you’ve written it down, could you try to summarize the Howey Test for us?

Kimberly: It’s easy given the order I put the four elements down: Howey test says someone must invests money to a common enterprise or a company for the purpose of receiving profits that are solely generated from others’ efforts and time. If all four conditions are met, you have an investment contract and that defines a security.

Greg: Sounds good to me! Did anyone have questions?

Emily: I do! I have a friend whose dad invested in a farm — not with money but with a tractor he inherited from his father. Would that count as investment?

Greg: It would. “Invest money” has been later expanded to “invest asset” or valued resources. There is a catch, though, and not every book or article mentions it: Everyone will accept money, but not everyone will accept a tractor, depending on what the common enterprise needs. The investor would have to find out before investing.

Kimberly: What exactly is a “common enterprise?” We don’t hear that term often.

Common Enterprise that Kimberly asked about

Lily: From what I searched, that term has never been precisely defined. Most federal courts defined it as “horizontal,” meaning several investors pooling their money or assets together to invest in a project. A common enterprise is similar to a “shared project” in that sense. But other courts have different definitions.

Greg: I think it is important to keep in mind that the SEC was created to tighten the control and regulations of securities, cleaning up the mess left by the Great Depression. With that in mind, the Supreme Court cared more about substance than form in its ruling.

Emily: What do you mean “substance over form?”

Greg: Let’s use the Howey example, the leaseback deal that the Howey Company did with the landowners in Florida. There was never a stock or bond issued by the company. Would that count as investment contract? We all know now that the Supreme Court said “Yes.” The landowners were investing their assets in the Howey Company, and therefore must register with the SEC.

Joy: Yeah, speaking of substance over form, I found this other legal test called the “Forman test.” It’s quite interesting because it tells us what a security is not, even though the transactions involved names like “stocks” or “shares.”

Emily: Really, that’s interesting. Tell us more about it please!

Joy: You guys can Google it yourself by using “the Forman Test of securities.” But the basic story was that this nonprofit organization called United Housing Foundation developed some low-cost, government subsidized housing units and asked that anybody wanted to rent an apartment must buy eighteen shares of stock first. The shares were not transferrable — remember dad said ownership liquidity for securities, that anyone can buy or sell any number of shares at any time? Well, this one did not have any liquidity, and shareholders had no voting rights, either. When they leave the housing unit they must sell the shares back to the nonprofit organization at the original price they bought.

Low income housing units in the Forman Test of securities

Emily: How did the Supreme Court hear the case? I mean what happened that triggered Supreme Court hearing?

Joy: Like most legal battles, this one started when private interests were threatened. The nonprofits decided to raise the price for the units and 57 residents decided to file a lawsuit against the nonprofit. Interestingly, instead of accusing the nonprofit for simply raising price, these residents argued that the nonprofit violated the securities laws by issuing unregistered stock. The nonprofit argued back that the stocks it issued were not securities. That’s what the Supreme Court had to decide.

Kimberly: What’s the verdict of the Court?

Joy: Well, like dad was saying, substance over form. The Court basically agreed with the nonprofit and declared that just because it called its shares “stock” did not automatically make it an investment contract. The Court said something like when the transaction was motivated by consumption rather than investment for profit, the securities laws do not apply.

Lily: In other words, it is not how people call it, but what is really going on between investors and companies that matters.

Greg: Yeah. Some people get really creative with playing the names game just so they don’t have to register with SEC. It’s understandable because, let’s face it, it’s no fun to do the paperwork with government. Not just the paperwork but they must disclose all the crucial financial information to the public, like quarterly financial reports.

Joy: The Forman test was a big deal because it says you must separate consumption from investment.

Greg: Not all states agreed with the Forman test, though, despite the Supreme Court ruling.

Emily: Oh, really? Can states disagree with the Supreme Court?

Greg: Sure, there are federal laws and state laws, and if they disagree, your case will depend on which state you live or do business with.

Emily: Could you give us an example?

Greg: Yeah, I did my homework last night and found that there was one historical case right here in the Bay Area, in Marin County to be accurate. In 1959, let me quote this website, “some enterprising developers bought land in Marin County to develop a country club. To pay for some of the costs of building the club, they sold charter memberships in the club. The members would not share in the profits or ownership of the club but would have the right to use club facilities.”

Golf /Country Club in the Risky capital test of California

Kimberly: Let me see if I could put it in plain English: Some Marin County real estate developers needed money to build a country club. So they announced that anyone investing in money would receive a membership to use the club, not an ownership of the club.

Greg: That’s it, you did a good job in translation!

Kimberly: That to me is another “consumption but not investment” case like the Forman test says.

Greg: Exactly. By federal definition the membership would not count as securities because investors only get the right to use, not the right to own the club. But the California Supreme Court disagreed and came up with a new test called “Risk capital test.” It said even if investors only got the right to use, they invested money in a risky business that could not guarantee the consumption right in the future.

Emily: Very interesting! So cases like that will be counted as securities and must register with the state of California.

Greg: Yup.

Kimberly: That says a lot because almost all investment of money involves risks, and few if any enterprise would guarantee the return of profit.

Greg: It did say a lot. Instead of profits in the future, it looked backward to risk involved when investors wrote checks to business. The California Supreme Court apparently wanted to protect the public from risky investment schemes with uncertain or risky results.

Emily: Dad, I would like to return to Howey test. Why did the Supreme Court asked for having someone else’s time and efforts to qualify for a security? Why can’t it allow investors to take control of the company and be the managers?

Joy: I have been thinking of the same question myself, and I think I have an answer: Separating investors from company managers helps the company grow and reach a scale.

Emily: Are you saying a security is not like a family business? You know, like mom and dad do everything themselves: investing their own money, working together to control everything in business.

Family Business Emily talked about

Joy: That’s a good way of saying it.

Kimberly: I have a simpler explanation: Just think about borrowing money from a friend. If you own a business and wanted to borrow money from your friend, would you like to have that friend manipulate or manage your business, just because s/he lends you money? Of course not.

Joy: An excellent point. It reminds us that all laws are based on common sense.

Lily: I think the other reason is efficiency: Many investors know nothing about a particular business, and they may not be interested in it, but they are the ones with the money. Why not invest the capital and let someone else run the business. Everyone is happy and gets to do what they do best.

Joy: Another good point! I want to clarify one point about family business: At first they do everything by themselves but later when they grow bigger, they will hire someone else for managing the business. Some family businesses may also need more capital to grow. If they decide to go to public for funds, they turn themselves into the securities market.

Emily: If a family business stays private and never issues stocks and never lists itself on the stock market, would it qualify as a security?

Joy: It’s funny you asked. I came across this notion of “private securities” earlier. Apparently securities include both public and private types. It’s just that most securities we know are public.

Emily: So how the private securities differ from public?

Joy: A privately owned security does not issue any stock to the public. It is also not required to register with the SEC and do all the disclosures like public securities must. Of course, its downside is not to be able to sell stocks to the general public, only to accredited investors.

Emily: Who are the accredited investors?

Accredited Investors Emily asked about

Joy: I did some follow-up research and found that an accredited investor may be an individual or an entity like an organization, a firm, a bank, an insurance firm. Basically they are financially sophisticated, like a stockbroker or a licensed financial advisor, or with so much money that they do not need the protection by SEC.

Kimberly: I heard about accredited investors before. My school once invited a startup founder to speak to us and he mentioned that they prefer to get private funds from accredited investors, not through IPO …

Jason: What’s IPO?

Kimberly: It stands for Initial Public Offering, to raise capital from the public for new companies. The startup will sell shares of their stock to everyone who wants to buy. Of course, it’s public, so SEC will be involved. The speaker said they didn’t want to go through all the regulations and paperwork, so they chose to go private.

Joy: Speaking of startups, did you hear the term “Unicorn?” That’s a term used in the venture capital industry to describe a privately held startup company with a value of at least $1 billion.

Jason: Could you give me some examples of Unicorn?

Unicorn Startup Joy asked

Joy: This one I am sure you have heard: ByteDance, who owns TikTok, and SpaceX by Elon Musk.

Jason: Oh yeah! Let me check their valuation. Oh, ByteDance is valued at $140 billion, and SpaceX is at $100+ billion. By the way, how do they know the value of a startup?

Greg: The key is to separate two values: Intrinsic versus market. A startup is about to enter the market but not yet, so we don’t know its market value. But experts can come up with an estimated intrinsic value based on future earnings or some other company attribute unrelated to the market price of a security.

(At this point the dinner table conversation ends.)

Categories
Financial talks at dinner table Securities Investment

The Opening Conversation on Securities

A quick reminder of the family members participating in the conversation:

Joy, managerial consultant
Kimberly, 12th grader
Jason & Cleo, 5th & 1st Graders
Emily, 8th grader
Greg, finance professor
Lily, college student

It is a sunny day in the San Francisco Bay Area where the Kingstons live. Joy the mom usually has a busy schedule but today she came home early and prepared the meal for the big family. When she saw her husband, Greg, before the meal, she could not wait to ask him a question:

Joy: Honey I am glad you are home! Guess what, I was at a client meeting early afternoon and one of my clients asked me a question that was totally out of blue. She wants to know how to define securities, you know, stocks and bonds. I told her I’d have to ask my husband for more details. What would say to her if she asked you in person?

Greg: Interesting question! (Turning to Cleo and Jason, the youngest daughter and son both in primary school): Did you learn from the school about what securities are?

Jason: Not that I can remember. But I can Google it. (Jason pulls out his Pixel 5: “Hey Google, define securities.” Google returned entries from Oxford languages in four categories: “All,” “Politics,” “Finance” and “Police.”) Dad, you want the financial definitions, right?

Greg: Yes that’s right.

Jason: Here you go. It has two entries. The first one says: “A thing deposited or pledged as a guarantee of the fulfillment of an undertaking or the repayment of a loan, to be forfeited in case of default.” The second says: “A certificate attesting credit, the ownership of stocks or bonds, or the right to ownership connected with tradable derivatives.” Wow, a lot of strange words for me!

Greg: Well the first is basically saying the same thing as collaterals. Please check on the definition of collateral, C-O-L-L-A-T-E-R-A-L.

Jason: Hey Google, define “collateral.” Here it is: “Something pledged as security for repayment of a loan, to be forfeited in the event of a default.” It sounds similar to the definition of securities but what do all these mean?

Greg: Let me ask you a question. I remember last time your buddy, Michael I believe his name is, wanted to borrow your bike for one day. Why did you ask to keep his iPhone before lending your bike to him?

Jason’s favorable bike

Jason: Because I was concerned that he may damage my bike, and I almost said no to him. Keeping his iPhone made me feel a little bit better or safer.

Greg: That’s it. You had something similar to a collateral from Michael.

Jason: Oh, really! That’s it?

Greg: Yeah — in spirit, not exactly in monetary term because you guys never agreed that if Michael broke your bike, you’ll keep his iPhone, am I right?

Jason: No, of course not! I did that just to make me feel better and safer.

Greg: So strictly speaking the iPhone is not a collateral but the basic idea is this: Someone wants something valuable from you, and you ask something valuable in return as a kind of guarantee, or a token that make you feel better and safer. Just remember the key difference is whether you can permanently keep the iPhone — that’s what the word “forfeit” means — in case Michael smashed your bike. If you could then it is a collateral or a security, otherwise it is not. 

(Turning to Joy): Sorry we haven’t got to address your question. Your client was clearly asking about the second definition that Jason was reading out. Jason, could you read that second entry again?

Jason: Sure: “A certificate attesting credit, the ownership of stocks or bonds, or the right to ownership connected with tradable derivatives.”

Greg: That basically says securities are ownerships, either currently or in the future, either complete or fractional/partial.

Stock certificate for ownership that Greg talks about

Jason: I didn’t see anything that says future or partial ownership.

Greg: This is the tricky part of formal definitions. They tell you something you must know, but oftentimes you must possess additional knowledge to be able to completely understand the words. The more you know, the better you understand. In this case, I know securities involve future and partial ownership because that is what financial derivatives do.

Kimberly: So dad, do you think the definition is a good one?

Greg: It’s as good as can be stated in a few words. Securities are a full pack of knowledge points, impossible to be covered in one or two sentences. You really need a Wikipedia entry to cover them all.

Joy: Would you offer a more complete view to us, like what is the major parts that are missing? I want to impress my client, you know.

Greg: In that case, the definition Jason just read is not even remotely complete. It says nothing about risk, nothing about ownership liquidity, nothing about investment contract, nothing about common enterprises, nothing about profit expectation and passive income. It misses completely the legal test of Howey defined by the Supreme Court.

Investment Agreement in the Howey Test

Joy: Wow, a lot of misses. let’s slow down a bit and say one thing at a time, shall we?

Greg: Sorry about that. Let’s begin with risk. Like many things in the world, securities contain value but also risk. In fact, we can say that the minute you take risk out of securities, they are no longer securities. I always like to add two letters “I-n” to the front, so that we say all securities are “insecurities.”

Emily: Interesting and I have never heard that one before. Could you give us an example of something that has little or no risk and not a security?

Greg: Sure. All standard insurance products carry no risk because as long as you pay your premium, you are guaranteed for the death benefits and cash value. We don’t call insurance products securities. For people who are retired, their annuities are also risk free. Not surprisingly, they are not securities. Finally, your savings and checking accounts in the bank are protected by FDIC, they are not securities.

Cleo: What is FDIC?

FDIC seal Cleo asked

Joy: It is Federal Deposit Insurance Corporation, an insurance company that protects depositors. Say someone saves $2,000 in his Bank of the West account and one day the bank declares bankruptcy, the person will get his $2,000 back from the insurance firm even though his bank is closed for good.

Emily: Oh that’s good. I was watching the movie Something the Lord Made the other day on Netflix, it shows this great guy Vivien Thomas saved his tuition money for college in a bank and lost it all because the bank was closed for bankruptcy.

Greg: Yeah, they created FDIC in 1933 exactly because the Congress saw thousands of bank failures in the 1920s and early 1930s. Did you guys know that the money for FDIC is from the premiums paid by the banks? They are not paid by our taxes. It’s really one of the greatest programs in the world! If you look at the FDIC website, you will see that ever since the birth of FDIC “on January 1, 1934, no depositor has lost a penny of insured funds as a result of a failure.” That’s how safe your money is with the bank.

Jason: How about something that is risky but not a security?

Lily: Gambling is risky, but it is not security.

Kimberly: but I heard people saying investing in stock market is just like gambling at a casino.

Joy: I’ve heard that, too. Sometimes people just want to dramatically simplify things to make them easier to understand or to remember. But how long do you stay in a casino to gamble? One hour? Two hours? Whole day? An entire long weekend? For most people, it is less than three days. But investing stock market is typically much longer than three days, sometimes one’s lifetime.

Lily: Also most people know they will end up losing money in a casino but expect making money from a stock market.

Joy: Yeah, especially when you go long term in the stock market.

Cleo: But daddy took me to a horse racing the other day and told me horse racing was gambling.

Joy: That may not be completely true. Horse racing is a legitimate sport but can be a way of gambling. Not all racetracks allow betting on horses, though.

Horse racing first time for Cleo

Greg: You are right. Note the gamblers on a racetrack are just like gamblers in a casino, they play the game quick and short.

Joy: So what’s the next thing that the definition missed?

Greg: It’s called “ownership liquidity,” basically a fancy way to say that one can buy and sell his or her securities to anyone else in the market upon a short notice.

Kimberly: And why is that important?

Greg: It makes securities more attractive than your savings and checking accounts in the bank. Here is why: You can cash your securities out almost as quickly and conveniently as you can from your bank accounts, but you expect much higher returns than what you earn in interests from a bank.

Lily: But money in the bank is safer with FDIC, right? You don’t worry about losing it like sometimes you do with securities in the stock market.

No risk, no gain. Some are willing to take more risks than others

Greg: True, and that’s the whole point of “no risk, no gain.” Securities have risk and bank accounts don’t, so securities bring higher gains than a bank account.

Joy: Okay, what’s next on your list of misses?

Greg:  Let me see, I think it’s investment contract. This is fundamental and covers all the other issues like Howey test, expected profit, common enterprises and passive income.

Joy: Sounds like we are switching from business to law.

Greg: That’s because the US Supreme Court was involved and came out with a legal definition of securities that all come down to this thing called “Howey test.”

Joy: But when I invest our money into Google and Apple, I do not remember signing contracts with anyone.

Greg: The regulation is tight for security firms and also brokers and advisors but light for individual investors. You do not have to sign a formal contract, although the brokerage company may ask you to sign the paper to open your account. That has nothing to do with the Howey test. 

Joy: So what is this almighty Howey test?

Greg: Instead of me talking all the time, how about we end here now, and everybody does his or her research online for the Howey test and we reconvene tomorrow to see what we get?

(Turning to Joy): Did you tell your client you will get back to her tomorrow?

Joy: No, I don’t get to see her tomorrow, we meet once a week.

Everyone agrees with the research idea and the conversation stops.

Categories
Cryptocurrencies & NFTs

CBDC By All Means

For those paying even limited attention to the news, it is almost impossible to finish a day without hearing words like “Cryptocurrencies,” “NFTs (Non-Fungible Tokens)” and “CBDC (Central Bank Digital Currency),” especially after the Super Bowl 2022. The best question to ask at this point is not whether crypto will stay and grow, but how to deal with changes in currency — something that has not happened for decades or a century — to make the transition more smoothly, costing less and gaining more.

CBDC = Authoritarianism?

Some commentators, like this opinion piece by Aubrey Strobel, went out of their ways to argue that we should avoid CBDC by all means because it symbolizes authoritarianism. If the US adopts CBDC, it “will be the end of American freedom” according to Strobel, and “the American government will be on a surefire path to authoritarianism.” “CBDCs would create an authoritarian surveillance state and constitute a severe overreach of power.”

Strobel is not alone, and she has companies in the US Congress. For convenience I will only cite the words from Congressman Tom Emmer (R-MN), which were cited in this Harvard Business Review article, “Central banks increase control over money issuance and gain insight into how people spend their money but deprive users of their privacy.” Other politicians may say similar things.

What are the problems with this way of thinking?

Two in my view: It ignores or at least underestimates the power of rule of law, and it jumps to conclusions prematurely. I will discuss each below in turn.

Keeping Rule of Law in Mind

There are “China haters” who would criticize anything and everything China does and would push the US away from doing anything remotely similar to what China is doing or has done. But they forget — ironically for lawmakers — that the key difference between China and the US is rule of law: The latter has it, but the former has not.

Under the current leadership of Xi Jinping, China clearly shows more interests in “rule of party” than rule of law. It would be a shameful waste if the US follows a strategy of eschewing anything China does, because the US has long existing and detailed laws to protect citizens’ privacy, while China can only resort to its top leaders’ goodwill or personal preferences.

To be sure, China has come from a long way behind and has made long strides of progresses. There is no better way to summarize the situation than simply saying that time has changed. Even the top leaders can no longer do what their processors could do. If China shifts from Xi Jinping to “Wang Jinping” or “Li Jinping,” whoever takes the helms today is unlikely to go back to Mao’s era completely.

As a good example, just when seemingly everyone in the US or EU is accusing China as a surveillance state, even with a model to link surveillance cameras with internal citizen control to turn everyone into his own policeman. Few has bothered to mention the fact that “(r)oughly 770 million surveillance cameras are in use today, and that number is expected to jump to one billion by 2021, according to a market forecast reported by the Wall Street Journal last year.

China has also moved toward guarding citizens’ privacy. According to the BIS (Bank of International Settlement) 2021 report, which cites different approaches taken by countries to protect citizens’ privacy, China’s version of CBDC, called e-CNY, “is to shield the identity of the user by designating the user’s public key, which is issued by the mobile phone operator, as the digital ID. The central bank would not have access to the underlying personal details.”

Yet China still has a long way to go, and the strong legal guardrail preventing power abuse, like the system we see in the US, is simply not there. Missing that, Chinese citizens can still only count on the goodwill of top leaders and little else. This is likely to be the key and long lasting advantage the US has over China.

Sometimes I get angry after repeatedly seeing public events taking (the usual) bad turns in China, where governments have the knee-jerk reactions case after case: blocking the news from spreading instead of addressing the root of the problems. Take a look at this latest example of a trafficked woman who was chained to a small shed after producing eight children. What the ABC News report did not mention is that local governments, while promising to conduct a thorough investigation and “detained six people and fired eight lower-level Communist Party officials,” are also investigating who gave the pictures to the media that caused a big fuss on the domestic Internet. These are exactly the kind of developments that kills my confidence in China’s system — the same confidence that Xi Jinping told the world to have with China.  

“Have faith in your own institutions. Know your competitors but first, know yourself better.” These are the words I want to say to some Americans.

Tactic vs. Strategic Institutions

It is important to remember that CBDC is not an institution standing by itself, separating from everything else. CBDC is not falling from the sky and randomly landing itself anywhere in the world, either. It is not CBDC that creates authoritarianism, just like it is not Bitcoin that will turn a country into democracy. CBDC and Bitcoin are what I call “tactical institutions.” It is the bigger, higher level — the “strategic institution” of rule of law — or lack thereof, that controls the nature of CBDC.

The BIS 2021 report, my favorite document on the CBDC topic, says it well: “The same technology that can encourage a virtuous circle of greater access, lower costs and better services might equally induce a vicious circle of data silos, market power and anti-competitive practices.” Furthermore, “whether a jurisdiction chooses to introduce CBDCs, FPS or other systems will depend on the efficiency of their legacy payment systems, economic development, legal frameworks and user preferences, as well as their aims.”

Rule of Law Brings Surprises

One way to understand and to remember what rule of law is about is to think of it as capable of bringing “surprises.” Without rule of law, those who are stronger and more resourceful would “logically” dominate those weaker and less resourceful. Without rule of law, those who have free access to precious information would “naturally” use it anyway they see fit with little consequence. Without rule of law, those at a higher hierarchical position would “normally” smash or abuse those below anyway pleases them and expect little repercussion.

But rule of law changes all that, and there is very little left to be taken for granted with rule of law. Think you can ­dominate the less powerful others? Think again! Think you can use all the information you have access to? Sorry but think again! Think you can wield all your positional power on your subordinates, once again it would be smarter to think again!

Why are those “surprises” good for the society? Because (1) they send a signal out that justice is possible; (2) they bring at least some power to the presumably powerless; (3) they turn the world into a more level playing field than other models of social governance where rule of law is missing or weakening; (4) they prevent “winner takes all” from happening, at least from happening all the time; and (5) they redefine strength and weakness not by a single type of resource but multiple types.

Simply put, the biggest advantage of rule of law is to organize and mobilize social resources, public or private, by transparent, carefully designed and universally applied rules. Xi Jinping of China does not believe it and is trying to revive the legacy “rule of men” system. He is wasting time — his and China’s. The best test of rule of law is how many surprises like those listed above an average citizen will encounter on an average day. Until China someday proves itself capable of producing more surprises, China is still a weak country no matter how big its GDP figures are.

Don’t get me wrong: Rule of law will not be completely watertight or completely bulletproof but acts like human immune system: the most efficient, adaptive and holistic first line of defense.

In the case of CBDC, rule of law changes the question to be asked: It is not whether central banks have direct access to citizens’ private information or not, but what they can do about it and what consequence they must face in case of abuse, that separates authoritarianism and democracy.

Of course, we can design the CBDC model such that central banks do not always or do not automatically have direct access to citizens’ transactions data. I will come to that point later.

Is Nakamoto Too Radical?

I know there are many enthusiasts out there who would accept nothing but Satoshi Nakamoto and his Bitcoin. With all due respect for the pioneer, Nakamoto has shown a tendency to forget or to underestimate the power of rule of law. He designed Bitcoin in a way like it was in the wild and lawless west. As a result, Nakamoto and his Bitcoin bring truly radical changes.

A good framework of evaluation is to consider the three dimensions of an information system: architecture (concentrated or distributed), access (permissionless or permissioned) and control (centralized or decentralized) as discussed in this insightful essay.

Nakamoto goes all the way to change all three dimensions at the same time by making Bitcoin a distributed ledger (i.e., financial bookkeeping records distributed over numerous public nodes with redundant copies), with completely open (i.e., “permissionless”) access and entirely decentralized control. His design came at the time when we had an entirely concentrated, permissioned and centralized monetary system. Bitcoin was consciously made as the anti-thesis of the status quo.

When someone tries to do too much at a single shot, the solution is inevitably radical rather than balanced. This does not mean the proposal will be a total failure. Consider Warren Buffett who used to call Bitcoin “rat poison” years ago, but just invested $1 billion to a cryptocurrency friendly bank, Nubank based in Brazil. It is safe to say that Bitcoin is here to stay.

However, radical solutions tend to have an excessive cost. As the BIS (Bank for International Settlement) 2021 report points out, “it is clear that cryptocurrencies are speculative assets rather than money, and in many cases are used to facilitate money laundering, ransomware attacks and other financial crimes. Bitcoin in particular has few redeeming public interest attributes when also considering its wasteful energy footprint.

Even Bitcoin fans or early adapters have voted by feet. In terms of picking the best crypto exchanges the centralized exchanges (Coinbase, Binance, Kraken & Gemini) are far more popular than decentralized ones as discussed in this Investopedia article. The latter also do not necessarily do better than their centralized counterparts in safety. According to this Wikipedia article, “(i)n July 2018, decentralized exchange Bancor was reportedly hacked and suffered a loss of $13.5M in assets before freezing funds.”

By the way, I have little doubt that Satoshi Nakamoto is the person’s real Japanese name because his words and deeds match the behavioral pattern under the influence of Confucianism.

While being modest and maintaining a low key in spite of great success is a virtue, I wish Nakamoto had some exposure to psychology to help him understand imposing constraints in access, control and architecture is itself a valuable incentive, while leaving everything open can be a big turnoff because it can significantly weaken the sense of individual responsibility.

China has a famous proverbial story that says a Buddhist temple was deeply hidden in the mountain and people had to go downhill to get drinking water. First there was just one monk in the temple, who always carried two buckets of water on his shoulder and climbed uphill. Life was hard but manageable. Later one more monk joined the temple, and the two decided they both should share the responsibility of getting one bucket of water uphill as nobody wanted to be the one carrying two buckets. Soon another monk came and since none of them wanted to be the “water carrier,” the three all died of thirst.

So the famous saying goes: One monk = 2 buckets of water, two monks = 1 bucket of water and three monks = 0 bucket of water (一个和尚挑水喝,两个和尚抬水喝,三个和尚没水喝).

In the Nakamoto’s case, according to this article published in August 2021, there were 12,130 public nodes running on the Bitcoin network. Such a global “temple of Nakamoto” is much larger than three “monks.”

But my intention is never to mock all free and open entities as the “temple of three monks.” Instead, I strongly believe temples of one, two or three monks should all be allowed to exist, at least to try out. Diversity makes life beautiful, while the same model of life never fits everyone.  

How Rule of Law Helps Protect Privacy

I have two counterarguments to weaken the equation of CBDC = Authoritarianism. First of all, not everything is to be changed by CBDC. At the end of day, customers own their transaction records and have the right to keep them private. Shifting from commercial banks to central bank (if the US decides on a “retail CBDC” model, see later for details) will not change that. The same laws and regulations should apply tomorrow as they do today. Following my thesis of “rule of law = surprises,” laws offer protection to the weaker, less resourceful agents, entities or parties. Just because someone has access to free information does not mean they are free to use it anyway they want.

Secondly, while CBDC may allow central banks easier access to transaction records than before, pending on which business CBDC model we choose to follow, one may argue that the risk exposure will be lower rather than higher today. With about 85,000 branch offices of commercial banks in the country according to this article in Harvard Business Review (HBR), all allowed to access or to hold customers’ transaction records, hacker attacks and information leaks are bound to happen. The same HBR article says that the “cost of fraud to U.S. financial services companies is estimated at 1.5% of revenues, or around $15 billion annually.” By handing over the records to the central bank (again pending on the retail CBDC model, which may not be the best) that is better equipped with security resources than commercial banks do, we expect fewer attacks, although each attack may be more devastating if it does happen, as the loss will be higher.

The moral of the story is that we hardly ever see decisions completely risk free. Far more likely we will face trade-offs that force us to weigh benefits and costs, to compare solutions and to arrive at the conditionally best choice.

Enough for philosophical talks and let us see which business model of CBDC will allow us to avoid or mitigate some costs and seek more benefits from transitions. Before doing that, however, we have to clear one more mental hurdle first.

A Little Patience Helps Everyone

The second problem with the “CBDC = Authoritarianism” equation is lack of patience to jump to conclusions too quickly, which reduces the possibility of keeping an open mind. This may not seem a big deal but lacking patience can be fatal for developing good, sensible and smooth agenda of changes.

The last time I checked, with China moving the fastest, not a single CBDC project on the face of the earth has been set in stone. We are seeing white papers, proof of concept and experimentations. There are just too many variables and too little certainty at this moment.

To begin, it is not even sure that all CBDC models will have the central bank getting all the retail transaction information. To be sure, some fintech experts, like Ajay S. Mookerjee in an HBR essay, seem to favor retail CBDC when he pictures “a scenario in which every citizen has, in essence, a checking account with the Central Bank” that makes “the central bank effectively becoming the sole intermediary for financial transactions” and “becomes the lender of first rather than last resort,” therefore eliminating all “bank runs” and the need for FDIC insurance as “the depositor carries no risk.”

The Three CBDC Business Models

I am not sure whether such a scenario will arrive anytime soon — if ever — with any degree of certainty. You do not have to listen to me but do listen to what banking experts have to say. In the 2021 BIS (Bank of International Settlement) report cited earlier, the authors summarized three CBDC models (in Graph III.7), although less informative and less insightful discussions can be found elsewhere by Ernst Young and McKinsey.

First we have “direct CBDC” or retail CBDC, in which the central bank is dealing with every individual customer, be it business or household, covering all operational tasks with user-facing activities like account opening, maintenance and enforcement of money laundering.

This is the least likely model that the Fed will follow. I know this because on Jan. 20, 2022, seven days before Strobel publishedheropinion in Newsweek, the Federal Reserve Board (FRB) released a discussion paper on the pros and cons of creating a central bank digital currency (CBDC) for the United States. In the paper, which invites public comment through May 20, 2022, the FRB already makes it clear that the US CBDC “must be intermediated (the private sector, not the Fed, would offer accounts or digital wallets to facilitate the management of CBDC holdings and payments).” The reason: Such a model would ignore or bypass all the intermediaries of commercial banks and other fintech players, who are better equipped to deal with retail customers than the central bank does.

Direct CBDC model also means the central banks will act like Strobel has claimed as a “money printer” (i.e., regulating monetary policy) and “personal banker” at the same time, which is not a smart idea — not for ideological reasons but for efficiency considerations. But if one must look at the issue from a pure ideological lens, something Strobel is clearly doing, I would say direct CBDC model smells more like authoritarianism than the wholesale model does, as the former inevitably leads to a much deeper penetration of citizens’ financial lives than the latter does.

The second model is what BIS calls “hybrid” CBDC architecture, in which the private sector “onboards all clients, is responsible for enforcing AML/CFT (i.e., anti-money laundering and counter-terrorist financing)regulations and ongoing due diligence and conducts all retail payments in real time. However, the central bank also records retail balances.” According to BIS, “The e-CNY, the CBDC issued by the People’s Bank of China and currently in a trial phase, exemplifies such a hybrid design.” As I quoted above, it looks like the FRB will also be on board, as well as the European Central Bank (ECB).

With such a model, existing financial institutions like banks and other financial or fintech entities will be handling customers’ digital accounts. Although CBDC is the sole liability of central bank — just like hard cash is — operationally the private sector is not “off the hook” from the CBDC liability. In case when hackers attack, separating customers into different financial institutions makes the risk containable at local level. One may even say that this model is resonant with the decentralized and defused blockchain technology, despite the debate on whether permissioned (or private) blockchains, with which CBDC fits better than with public or permissionless blockchains, can be counted as genuine blockchain (I believe they should, see more later).

The last model discussed by BIS is the “intermediated” CBDC, which has been more commonly referred to as the “wholesale CBDC.” As the name implies, wholesale CBDC limits interactions of central bank to financial institutions, where central banks will run a wholesale ledger, although “PSPs (Payment Service Providers) would need to be closely supervised to ensure at all times that the wholesale holdings they communicate to the central bank indeed add up to the sum of all retail accounts.

A recent (undated) report by Ernest Young (EY) entitled “Crypto Assets the Global Regulation Perspective” (in downloadable PDF) also points out that the wholesale (i.e., with intermediation) model leverages existing (private) financial institutions to make CBDC like a central bank reserve account, “leaving a considerable role for existing market participants, such as banks and payments providers, avoiding the risk of disintermediation, and alleviating central banks from operational tasks such as customer due diligence (CDD) procedures.”

BIS is in favor of the hybrid model and urges CBDC to avoid a large footprint in retail and consumer facing financial activities, and instead to allow financial intermediaries to do what they do best: “CBDCs are best designed as part of a two-tier system, where the central bank and the private sector each play their respective role. A logical step in their design is to delegate the majority of operational tasks and consumer facing activities to commercial banks and non-bank PSPs that provide retail services on a competitive level playing field.”

This is the conclusion I like. Of the three models, direct (aka, retail) CBDC marks the largest deviation from the current central bank functionalities, while the wholesale model is likely to produce the least amount of changes from the current role of central banks. The hybrid model sits in between the two.

Privacy Has Not Been Forgotten

The BIS 2021 report has a separate section on how to identify and safeguard privacy of customers. It compares two models of the “token-based” versus “account-based.” BIS concludes that “a token-based CBDC which comes with full anonymity could facilitate illegal activity and is therefore unlikely to serve the public interest.” Instead, “Identification at some level is hence central in the design of CBDCs. This calls for a CBDC that is account-based and ultimately tied to a digital identity, but with safeguards on data privacy as additional features.”

It is not particularly hard to sell the idea of account based model, given the current system all demand for establishing accounts. The key challenge is how to balance digital money safety and privacy. The former is essentially about public safety like cyberattacks, money laundering and financial theft, while the latter about individual safety like identity theft, data abuse or even personal safety. “Consequently, it is most useful to implement anonymity with respect to specific parties, such as PSPs, businesses or public agencies. CBDC designs can allow for privacy by separating payment services from control over the resulting data.” “CBDCs could give users control over their payments data, which they need only share with PSPs or third parties as they decide.

In other words, just because CBDC is issued by the central bank does not mean the latter has automatic access to transactions information involving CBDC. This is not much different from hard cash, which is also issued by central bank and yet the latter has only limited knowledge of how every dollar is paid by whom to whom, unless it involves a hefty sum of cash.

Every party, other than the owner of the data, including government agencies, should only have access to transaction information at a “need to know” basis, nobody possesses automatic and sweeping rights. That way, the users maintain their data right and ownership, everyone else would take access as a privilege rather than as a right.

My Grand View of CBDC

I am not as “left leaning” as Satoshi Nakamoto is and I prefer not to discuss decisions or choices based on value judgements alone. I also do not see the need of treating governments as inevitably public enemies. They are just human created institutions with strengths and weaknesses like all of us do.

Although I do not judge others by the values they hold, I do hold my own value preference or value proposal. I care most about two things: Institutional inclusiveness and transitional efficiency. I call for the most preferred — also the least costly — scenario to emerge at the end of the transition period, in which central banks and decentralized cryptocurrencies will stay together rather than to kill or defeat each other. Given that, as pointed out by BIS, CBDC offers the unique advantages of “settlement finality, liquidity and integrity” for the digital economy, I entitled this post “CBDC by All Means.”

When a new innovation emerges from the horizon, we have always seen fans so enthusiastic that they predict the new innovation will wipe out or obsolete the old ones. History frequently proved them wrong because it takes time and trial-and-error for society to become aware, enticed, learn and eventually accept the new and drop down the old ones. This is a tall order and sometimes we may have to rely on the nature to get the job done. For example, we may have to wait until the entire old generation passed away to completely obsolete the land line phones.

History has also shown repeatedly that institutional inclusiveness pays. Humans are better off by having both centralized and decentralized controls, both open and limited accesses, both concentrated and distributed power /information structure.

These three dimensions — control, access & architecture — are discussed by this academic article, to which I want to add two more: Humans need both trusted and trust-free exchanges and we also need both disintermediated and intermediated transactions. I know some Bitcoin supporters strongly prefer disintermediation of anything, but the truth is that we often end up replacing one intermediary by another. Coinbase is a good example. Cryptocurrency traders do get rid of the traditional banks, but they pick up Coinbase or other (centralized) exchanges.

Will Central Bank Have Total Control of All Transactions?

To see why the US CBDC will not “give the government total control and oversight over every person’s holdings and transactions” like Strobel claims, let us first see what the Fed had said. On Jan. 20, 2022, seven days before Strobel publishedheropinion in Newsweek, the Federal Reserve Board (FRB) released a discussion paper on the pros and cons of creating a central bank digital currency (CBDC) for the United States. In the paper, which invites public comment through May 20, 2022, the Fed specifically notes that if a U.S. CBDC is created, it should “(c)omplement, rather than replace, current forms of money and methods for providing financial services.”

In other words, it is not in Fed’s plan to wipe out traditional forms of fiat money and to replace it with CBDC. This means even if every CBDC dollar is used for the evil “authoritarian” purposes, the Fed cannot gain “total control and oversight over every person’s holdings and transactions” like Strobel said, because traditional forms of fiat money will continue to exist — unless one regards all government issued money as authoritarian tokens.

If the goal is to gain the best control of all transactions, the Fed is better off replacing current forms of money by CBDC. This is because transactions using hard cash are still harder to be tracked than digital money. Drug dealers and money launderers often transact by paying cash, as recently reported by a credible study of SWIFT (Society for Worldwide Interbank Financial Telecommunication), rather than paying crypto.

The fact that the Fed is not pushing for complete replacement of cash by CBDC means it has something else in mind. Perhaps reducing the shock of radical transition or waiting for the blockchain technology to become more mature? It is safe to say there are multiple considerations in which controlling for transactions is just one of them.

What If All Fiat Money Is Gone?

But let’s stop guessing what is on Fed’s mind and simply assume Fed wants to replace all traditional forms of fiat money in the future. Furthermore, let’s also assume all governments want the same thing: controlling and overseeing everyone’s transactions. Now, with these assumptions will CBDC help the Fed achieve that goal?

The answer has to be “No!” In order to control all transactions, it is insufficient to make CBDC the only form of fiat money. We already know the reason: Even if the Fed makes CBDC a legal tender (i.e., the money that is legally established as satisfactory payment), which is certainly in the plan if the Fed decides to go with CBDC, CBDC will not be the only digital currency available in the market to cover all transactions. Other cryptocurrencies are already there. The only way for CBDC to have full control is to wipe out, or to drive out of circulation, all cryptocurrencies not issued by central banks. This would bring us back to the old days when Fed issued fiat money is the only currency available for all transactions in the market.

CBDC & Monopoly Power of Central Banks

How likely is it for the Fed to eliminate all cryptocurrencies so that its CBDC will be only legal tender and used exclusively for all transactions by all people? It is extremely unlikely. The reason is not because of the love affair between central banks and cryptocurrencies. If you know the history of Bitcoin, you should know that Satoshi Nakamoto created Bitcoin not to pave the way for CBDC to come later but exactly the opposite: to win a major battle in the arms race with government. Nakamoto was not shy in saying it out loudly why he wanted a decentralized currency: “Governments are good at cutting off the heads of a centrally controlled networks like Napster, but pure P2P networks like Gnutella and Tor seem to be holding their own.”

We now know the story after Nakamoto said that: Blockchains and cryptocurrencies have won a battle with the government — more generally with the central control of currencies. The fact that the Fed is talking about CBDC is a sure sign of that victory. It is like the old saying: If you can’t beat them, join them, which is what the Fed said it may do next.

Given this scenario, it is clear that CBDC will have to learn to co-exist with other crypto that emerged before it. This Investopedia article even asks about the possibility for cryptocurrencies to dismantle the central bank. Although that is unlikely, nor beneficial, to happen, it is clear that the crypto has dismantled the monopoly power of the central banks (see more on this later), not the bank itself. To break up or to end a monopoly all it takes is for a single unit of non-Fed issued cryptocurrency, be it Bitcoin, Litecoin, Ethereum or Dogecoin, to legally exists in the market. This is exactly what we are seeing today. In California, it is even proposed to make the cryptocurrency a legal tender, meaning it will be — if passed as law — perfectly legal to pay workers, consumers or citizens with cryptocurrency.

To governments’ ears the existence of even one unit of cryptocurrency is like a loud crack of thunder, which explains why so many people are talking about how monetary policies would be impacted in the future.

Debate on Permissioned Blockchain

The only weakness of the 2021 BIS report is that it barely touched on the technical issues involved in blockchain. There is an ongoing debate on whether permissioned (i.e., private) blockchains should be counted as a genuine blockchains. This is directly relevant to CBDC, which is more likely to sit in a private blockchain. A private blockchain is still a “distributed secure database,” which is the nature of all blockchains. If both central bank and commercial banks following the hybrid, two-tier architecture maintain databases of their own on CBDC related transactions, they would form a distributed ledger.

Even limited redundancy, meaning a few entities keeping repeated and redundant ledgers of the same transactions, is better than a single centralized ledger. The Fed could form an alliance with centralized cryptocurrency exchanges (the most successful ones like Coinbase, Binance, Kraken, and Gemini), that would boost up security. Say the Fed asks Coinbase to accept and to deposit CBDC for citizens, and both Fed and Coinbase keep separate ledgers for these customers, that would be a good idea, given these exchanges’ more experience with digital money than ordinary banks. 

Permissioned blockchain like this will not be open to everyone in the society but can still implement the key security features commonly seen in a blockchain, like the hash function (more strictly cryptocurrency hash function), Merkle tree, digital signatures (public and private keys), Proof of Work (PoW) and the longest chain protocol. Ultimately it is up to the alliance to try and to decide how far into the existing blockchain technology is the best for them.

A more interesting discussion is in this lecture note from Stanford University, where the instructor talks about how we can have the best of two worlds: Nakamoto + BFT (Byzantine Fault Tolerance). The latter is like CBDC to allow a permissioned system of static participation, unlike Bitcoin as a permissionless system of dynamic participation. Again, this means institutional inclusiveness wins over exclusiveness.

The US History of Money

I thought I had said all the things I wanted to say but thanks to this Investopedia article and also this lecture note, I learned an important fact that money is not always the way we know it today. Before the Federal Reserve, the US central bank, came into the scene, “(m)oney issued by non-bank entities like merchants and municipal corporations proliferated throughout the U.S. monetary system. The exchange rates for each of these currencies varied, and many were frauds, not backed by enough gold reserves to justify their valuations. Bank runs and panics periodically convulsed through the U.S. economy.”

The US emerged successfully from those chaotic — but little known or long forgotten — days and came up with a central bank system. “Immediately after the Civil War, the National Currency Act of 1863 and the National Bank Act of 1864 helped set the grounding for a centralized and federal system of money.A uniform national banknote that was redeemable at face value in commercial centers across the country was issued. Further to this, the Federal Reserve’s creation in 1913 brought monetary and financial stability to the economy.”

This story reminds me of the words from one of the most famous novels in China: Stories of the Three Kingdoms (三国演义). The author summarized Chinese history with a tendance to see people uniting after a long period of fighting, and fighting after a long period of uniting (天下大势,分久必合,合久必分). Translating this line of thinking to the history of US currency, we may say the money started from being decentralized to centralized and now is poised to go back to decentralization, thanks to the co-existence of crypto, CBDC and blockchains.

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Financial talks at dinner table

Introducing the Family Members in the Financial Talks at the Dinner Table

Cleo (6 year old, 1st grader) & Jason (10 year old, 5th grader), the youngest daughter and son in the Kingston family

Emily (13 year old, 8th grader), the third daughter in the family

Kimberly (18 year old, 12th grader), second daughter

Lily (20 year old, college student), first daughter

Joy Kingston (48 year old), Mom, a managerial consultant

Greg Kingston (50 year old), Dad, a college professor in Finance

All images are downloaded from the Creative Commons collection and inserted into pages of Microsoft Office Publisher.

Everyone in this fictional family “contributes” equally to the conversations.

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Did You Know?

What Exactly Are Securities?

Lately when I met my friend James in the UC Berkeley soccer field, he would ask me how my security exam preparation was going. (A quick update: I have stopped taking or preparing for securities exams as I will never find a “sponsor” for getting my securities license even if I pass all the exam. The rule requires examinee to find a financial entity as a sponsor before even taking the exams.) We would both laugh at the word “security,” and would use the “quote and quote” sign around it. We both feel that word is a significant misnomer, almost like calling a jail a “freedom house.”

All Securities Involve Risk           

A nice way to think of securities is to add two letters “In” to the front, turning it into Insecurities. This is an easy way to remember that security always involves risk. The minute when risk is gone, securities are no longer securities.

But securities are more than risks. For example, gambling and skydiving are risky but there is no such a thing called “gambling securities.” There must be something else in securities that gambling does not have.

Securities Have Voluntary Ownership Liquidity

How about “easy transferability,” meaning securities not only involve risk but the risk is easily transferrable, like selling your shares of Apple or Google stocks to someone else. This may not seem a big deal, but keep in mind not all risks are easy to transfer.

Gambling risk is again a good example. You can’t, sometimes won’t, sell your bet to someone else the minute when it is your turn to place the bet. Similarly, when you have a losing bet, nobody else is willing to buy the bet from you and pay for your loss.

Easy transferability leads to high liquidity, which is a good thing. But why are securities more liquid than others? I have seen nobody talking about it. In my view, it is ultimately because when some people see risk, others smell chances to gain. It is the different opinions, positions and perspectives that make the ownership of securities highly liquid.

Put differently, when somebody is ready to sell his or her securities, there will be somebody else standing ready to buy them. This creates a perpetuate market for securities, where buyers meet sellers for transactions and exchanges. It is also for this reason why the initial issuer of the security sees no need to limit the transferability of the securities. 

From Liquid Ownership to Investment Contract

Unlike risk that is associated with most if not all things in life, transferability is associated with investment contracts. It is the latter that fully associated with the legal definition of securities.

Investment contracts have a formal interpretation from the authority no lower than the US Supreme Court itself.

This blog provides interesting legal and historical discussion. “Most states follow two U.S. Supreme Court cases when interpreting ‘investment contract’ under their state securities laws. The Court interpreted ‘investment contract’ under federal securities laws as ‘(1) a contract, transaction, or scheme whereby a person invests his money (2) in a common enterprise, and (3) is led to expect profits solely from the efforts of the promoter or a third party’ (‘Howey Test’). The Supreme Court later modified the third requirement, holding that in spite of the term ‘solely,’ what is necessary is only ‘a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others’ (‘Forman Test’).

In plain English, an investment contract starts from a person investing his or her own money to an entity called “common enterprise” by the Court. This person is not necessarily doing charity (although charitable investment cannot or should not be excluded) but is driven by a reasonable expectation of financial gains from the investment. Such an expectation in turn is made reasonable by the efforts of third party entrepreneurs (or the blander term “promoter” by the Court).

To be honest, the Howey and Forman tests are not perfect. For one thing, Karl Marx would argue that the common enterprise can grow not because of the managerial efforts but because of workers or employees. To the extent that innovations and actual work are done by the latter more than the former, Marx has a point. Better yet, we don’t have to single out efforts by one group of agents. We can simply accept the fact that an entity cannot grow without joint efforts of all relevant agents.

The other point missed by the Court is the profitability of an entity depends not solely on the entity itself but its surrounding environment like the market, government regulators, geological endowments, legal system, competitors, infrastructure and logistics, historical trend, industrial landscape, even global environment nowadays.

The final point the Court missed is the ownership liquidity. This is a big miss because it is the ability for one investor to sell his or her shares of any stock s/he owns to another investor that creates the secondary stock market. I will come back to that later.

Still, the formal legal tests (putting the Howey & Forman together) are good enough as a working model for us to understand what exactly securities are. The biggest contribution is to raise the definition of securities up from more generic factors of risks and liquidity to more specific terms.

What Can We Learn from the Investment Contract?

The key criterion for securities is not risk, which is too ubiquitous to be uniquely linked with securities. Most financial transactions bear risks so do most non-financial activities (like hiking, camping and driving).

Similarly, ownership transferability alone is not sufficient. If you think of it, currencies beat securities hands down in ownership transferability or liquidity. The minute you spent money on the phone bill, the BART ticket, the gas to your car, or groceries from Trader Joe, some money will flow out of your wallet and into someone else’s hand. Yet we usually don’t call currencies securities.

This is not saying that risk and transferability do not matter. On the contrary they matter a lot. Risk for example plays a crucial role in separating securities from non-securities like whole life or term life insurance policies, fixed annuities, IRAs and retirement plans. All these financial instruments carry little risk, unlike securities.

Similarly, ownership liquidity helps set securities apart from other financial products where ownership is more or less fixed, such as, once again, the IRAs, social security, insurance policies. But let’s consider something else: employment contracts. When someone is hired by a firm, the contract is limited to that person only. You won’t hear the story that someone signed the contract with Apple or Google and then change the name on the contract to his or her sister or brother as his or her replacement.

The same goes to college enrollment. When UC Berkeley admits Lily, only Lily can come to study there, not her friend or relative. Nobody can buy the seat in the classrooms or the bed in the dorm from Lily, no matter how much money he or she is willing to spend — because the college would never grant the transfer. For this reason, employment contracts and college contracts are never securities.

Notice the similarity of a college contract with security contract. Here we have an individual (the student) who invests his or her money and time into an entity (the college), with the expectation of future gains (including financial gain) from the investm­­ent, just like in the security contract. Also, the university hires management term to run and to grow the place, just like in a security contract. What is missing is the ownership liquidity.

The Test of Passive Income

But there is something else that is missing. Let’s continue with the college and employment contracts and put them under the light of Howey & Forman tests. The thing that is in the securities contract but not in the college or employment contract is passive gains.

In order to understand this element, I will cite this blog that has an excellent reading of the Howey test as “a three-question test used to determine whether a financial instrument will be considered an ‘investment contract,’ and therefore, a security.

1. Is there an investment of money with the expectation of future profits?
2. Is there investment of money in a common enterprise?
3. Do any profits come from the efforts of a promoter or third party?

If the answer to these questions is ‘yes,’ then the asset is considered a security.”

The element I want to talk about for securities is the third question, which spells out a term of passive gains or passive income. The investors put in the money and then let the management, or the “promoters” using the terminology of the Supreme Court, do the job for them. They do not have the time nor the expertise to run the entity. They just want to see the gains in the end — or quit if no gain.

This does not fit the college nor the employment contracts. When one is hired by the firm or accepted by the college, one is expected to earn the credits or the wage by trying one’s best. Passivity has no value here and can only get one trouble and failures in career or in education.  

In sum, securities must satisfy simultaneous criteria of risk, liquid ownership, individuals investing in entities with reasonable expectation of profits or gain but without active efforts of third party management.  

A Test of Cryptocurrencies

All this discussion may sound informative and educational, but does it have any link with the real life we are living in?

The answer is yes. This blog by SoFi provides a good example how definition of securities matters in real life, especially on how to categorize the nascent cryptocurrency market.

Let’s define commodity first, so that we can better understand the debate on whether cryptocurrencies are commodity or securities. According to this Wikipedia page, “commodity is an economic good, usually a resource, that has full or substantial fungibility: that is, the market treats instances of the good as equivalent or nearly so with no regard to who produced them.” The term is further divided into hard commodities through mining like gold, silver, helium and oil, versus soft commodities through farming like wheat, rice, coffee and cotton.  

Are cryptocurrencies like Bitcoin to be placed in the basket of commodities or securities? This is not a light question. We all know the government has much stricter regulation over securities than commodities, which explains why “some cryptocurrency industry executives as well as enthusiasts have pushed for the market to be categorized as a commodity market, and not a security.”

Of course, we can’t just listen to enthusiasts in our determination. What about the Howey test? The Sofi blog believes “cryptocurrencies are designed to be decentralized so, like commodities, don’t produce a return from a common enterprise. Some officials seem to agree. For instance, SEC Chairman Jay Clayton has indicated that Bitcoin is not a security.”

On the other hand, there are reasons to treat cryptocurrencies like securities, “like when they’re issued like stock in ‘initial coin offerings.’ These are capital-raising processes for blockchain or crypto-related businesses.”

But I see little dilemma in the case. Cryptocurrencies should be treated as commodity, but crypto-related business or financial products should be treated as securities. The recently issued Bitcoin ETF available to the US investors is a perfect example of crypto securities. This is the same idea as commodity futures contracts are not securities, but commodity options contracts are.

Another consideration is that regulation over cryptocurrencies can be light because the market is mostly participated by speculative investors who are sophisticated and accredited. Even SEC offers exemption to any securities on the private placement as long as they are purchased mostly by accredited and institutional investors, who do not need much governmental oversight or protection. However, with the introduction of products like Bitcoin ETF, regulators must step in to protect isolated, private and non-accredited investors.

Green pattern background
The Takeaways:

Securities are risky investment contracts with transferrable ownership among investors who all expect to gain profit from the investment. Investors offer capitals for people in the enterprises to try best to create value for the investors. Securities exist not just in primary market between investors and enterprises but also between investors in the secondary market.

Bird with flight path
Financial knowledge gives you wings. You can fly high like this bird!
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