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Cryptocurrencies & NFTs Financial talks at dinner table

A Deep Conversation on Fungibility

After the second family conversation yesterday, the Kingstons are anxious to talk more about NFT after doing their homework reading of the “NFT Bible” by the co-founder of OpenSea (the largest NFT marketplace in the world), Devin Finzer.

Emily: I’m glad dad recommended this reading; I feel I know so much more now about NFTs than before.

Greg: So what is the number one thing that impressed you guys the most?

Kimberly: I would have to say it is the point of “non-fungible assets are the norm; fungible assets are the exceptions.” The more I think of it the more I agree. We have seen far more unique things in the world than identical things.

Greg: I would be careful about calling fungible things “identical.” In the business world “fungible” essentially means “interchangeable” or “tradable” — even though two things may not be identical in every possible way. To borrow Lily’s term, things are “commonsense fungible” enough to be interchangeable or tradable.

Joy: I wonder if we should put “interchangeable” and “tradable” together, even though they sound similar. It seems to me that being identical is the least forgiven and most strict. Even identical twins are not exactly identical to the extent they expose to different environments. Being interchangeable is more forgiven because similar things are interchangeable even though they may or may not be identical, like two apples from the same tree in the same season. Tradable is most forgiven because we can arrange to trade so many different things, some of them not deemed interchangeable at all, like Russia exports oil and natural gas and imports iPhones and iPads.

International trade talked by Joy

Greg: Anexcellent point! Yes, many fungible things are interchangeable, but both fungible and non-fungible things are tradable. Perhaps international trading involves more non-fungible stuff given the different levels of development.

Lily: One advantage of focusing on “tradeable” things is that trading always involves negotiation. I think many things have fungibility that is also subject to negotiation.

Kimberly: An interesting thought that’s in line with Devin Finzer, who also emphasizes the relative and subjective nature of non-fungibility. Here it says “fungibility is relative; it really only applies when comparing multiple things.” And he goes on by saying two business class sets on an airplane is more fungible than a “first class” and an “economy class” tickets.

Fungible is exception; Non-fungible is the norm

Greg: I agree fungibility is relative but disagree that it is only useful for comparing multiple things. You can compare two things meaningfully for fungibility, just remember their fungibility is not fixed or absolute but changeable or conditional, depending on scenarios, contexts, time, people and history.

Emily: In theexample used by Devin Finzer you can see he is thinking of the same way. He talks about someone preferring a window seat would not trade his window seat with an aisle seat. But for someone else who does not care as much, the two seats are more fungible.

Window or aisle seat?

Lily: Yeah, the same goes to the idea of “semi-fungible”: Items within the same class are more fungible than items between classes, like two box seats in a football stadium are more fungible than one ordinary and one box seat, just like two Teslas are more tradable than one Tesla and one Ford.

Emily: Oh, that’s what “semi-fungible” means? I was wondering about that. What about the name of non-fungible tokens? I was thinking that if non-fungible was the norm, then non-fungible tokens literally mean “normal tokens,” not really an exciting name.

Lily: “Normal tokens” are not exciting I agree, but if we switch to the other side of the same coin and just call tokens “unique” that should be more appealing, as we all like things that are unique.

Emily: That’s true and in that sense, the name “non-fungible tokens” defines the nature of things pretty well because all tokens are unique in the NFT world, and each is different from others.

Greg: Yes, you may even say being unique is the only common feature shared by all NFT items on a blockchain.

Joy: Speaking of uniqueness, it just hits me that the whole idea for companies to develop brands is to make their products or services unique, not interchangeable with non-brands or other brands, even from the same category of goods or services.

Kimberly: Good point. And companies are not the only ones doing that, buyers do, too. I have a Chinese friend who once told me that the Chinese prefer the number “8” because it sounds similar to “Fortune” in Chinese. If that’s true, a Chinese customer may think a gold bar with the ending serial number of “8” is more valuable than an otherwise identical gold bar with a different ending number. I bet she would refuse to trade her “8” numbered gold bar with another.

Identical or unique gold bars?

Greg: Interesting points you’ve all brought up. We have been told in schools that commodities, money and gold are textbook examples of fungible or interchangeable things. Now we know even textbook examples do not always hold and are subject to negotiation. Both sellers and buyers have the power to turn interchangeable things into non-interchangeable.

Emily: What about the opposite direction? Like can we turn non-interchangeable into interchangeable?

Joy: Your question sends us back to the “tradable things” I said earlier. T-Shirts and airplanes are normally not interchangeable, right? But international trade did just that: Developing countries export T-shirts, tea, coffee, banana, raw materials so they afford to import airplanes from developed countries.

Kimberly: That happens every day. The fungible money plays a crucial role here: Anything can be tradable as long as they all have values measurable by money.  

Lily: I’m thinking that the reason non-fungible becomes the norm is because we all want to be unique, like I won’t trade my pants, jackets, skirts and shoes with Emily or Kimberly, even if they were the same brand, size or color. All my stuff has my name on it, and I don’t want to trade them with others.

Kimberly: I think it also depends on level of economic development. My Chinese friend told me that in the days before China opened its door to the world, some families in the rural area of China were so poor that the entire family had only one pant or one jacket. Whoever needed to get out of the bed got to wear that pant, others all hided under a family comforter. These people had no choice but to share the same “family pant.” Non-fungibility was not even on the agenda.

Emily: Shocking and sad story but good for China to put those days behind! I was wondering if and how the blockchain has changed things around.

Lily: Yeah, I was wondering about that, too. We should expect at least some changes, right?

Joy: We do, one big change has been pointed out by Devin Finzer that although we’ve had digital assets since the internet age, we’ve never really owned them like in the sense of physical world. That digital ownership story is changed by the blockchain technology.

Kimberly: That’s right. Devin talked about how blockchain makes it possible not only to prove who owns what in the digital world, but also for owners to move their digital assets around, like we do in the physical world.

Emily: Iwish there were more details, like how does blockchain make things different in the digital world?

Greg: There are many discussions on advantages and usages of blockchain, like Bitcoin, digital ownership, immutability or unchangeable, enhanced security, distributed ledgers. But all these I believe are based on non-fungibility of things. Digital ownership, digital credential, immutability, security, these things are baseless without digital assets being unique.

Emily: How does blockchain ensure non-fungibility then?

Greg: We can look at it at two levels. The first is at the block level. We all know blockchain is a chain of blocks. Each block of information has a unique timestamp and more importantly a unique “hash function,” which according to this Wikipedia page, is “any function that can be used to map data of arbitrary size to fixed-size values.” This guy named Haseeb Qureshi has a better way to put it: The hash function is a “fingerprint machine.”

Digital fingerprint

Joy: Yeah, I remember reading that piece. He has a neat cartoon picture to show how different inputs to the hash function come out as a fixed sized “fingerprints.” So if the input is “Hello!” the output will be some combination of letters and numbers. But if the input is “I love dogs!” then the output will be something different. They all will have the same size, like 256 bits. If the NFT is your passport, it will come out uniquely, never the same as someone else’s passport.

The “magic” hash function

Lily: So a hash function is as unique as a fingerprint.

Greg: More accurately a hash function produces unique fingerprints, depending on unique input data. This is how each block in a blockchain will be earmarked by its own unique fingerprint.

Joy: The article compares “normal” hash functions with “cryptographic” hash functions. The latter come with more security features and more robust than the former. It adds three more features like one-way function, avalanche effect and collision resistant.  

Greg: That’s right. But even a normal hash function is nice and powerful. One of its features is deterministic, which ensures that if you give the same input, the hash function will always produce the same output. Fungibility in the physical world is retained in the digital world.

Kimberly: But there are numerous records, transactions or NFT pieces within each block. How do they remain unique?

Greg: Let’s get the name straight first. In the physical world things are three dimensional existences, but in the digital world I believe everything becomes a token, whether you have Bitcoin, transaction records, personal credentials, driver’s licenses or passports, deeds, contracts, NFT artworks, games or cartoons.

Kimberly: Okey, so how do we keep tokens unique?

Greg: Simple, they all belong to different owners, creators or developers, and they have public and private keys in digital wallets. You can check out more information for the keypairs and how they work online. Essentially you can send transactions to public key, but you need private key to unlock them and prove you are the owner.

Joy: This validation process using private keys is why Devin Finzer says the blockchain finally solved the ownership problem.

Greg: Plus moving tokens around anywhere and anyway owners want. Once we have non-fungibility established, things become more fungible — no pun intended.

Joy: Maybe we should stop here and save more topics for another day.

All: Good idea!

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Cryptocurrencies & NFTs Financial talks at dinner table

Why Some NFTs Have Shocking Prices

After the first family conversation on NFT ended with an open question, today everyone is anxious to get back together at the dinner table because they have something other than foods in mind.

Greg: So did anyone want to share the thoughts on Lily’s question of why some NFT products having a shocking price tag?

Kimberly: Well, I think the key is to remember the NFT market is not just a buyers’ market, but also a new market. We have never seen such a market before because the whole blockchain technology was simply not there.

Joy: Excellent point! That definitely has something to do with the skyrocketing prices that Lily was talking about. What people do in a brand new market? They speculate because nobody knows exactly where the market is heading even in the short future.

Greg: I agree. This always happens: When we do not have solid facts to back up our thinking one way or the other, we use our imaginations to fill out the gap left by weak or scanty evidence.

Lily: But I still don’t understand how speculation pushes up the price of some but not all NFTs.

Kimberly: Well, in a buyer’s market only buyers have power, the sellers are left to suffer from low price. But in a new market both sellers and buyers are allowed to speculate, and both can shape the market through speculations, making the game fair and more interesting.

Greg: What Kimberly is saying is that although the NFT sellers lost the traditional monopoly power of scarcity like Picasso had, they gain the power of speculation in a time of high uncertainty.  

Lily: I understand that part. But why only some but not all NFTs receive astonishing price?

Emily: I think I have an answer. In a way the NFT market is like the California Gold Rush that we learned in history class. Everyone had high hopes, and everyone was trying to get rich quickly.

Greg: Interesting comparison. The Gold Rush showed us how powerful speculations was. Let’s be honest, without the Gold Rush there won’t be 300,000 people moved from all over the world to California; without the Gold Rush the city of San Francisco and the state of California would not have been born so early.

Joy: That’s true. Never overlook the power of speculations because changes made by speculations are just as real as those driven by full facts.

Kimberly: One important lesson from the Gold Rush — the one that helps answer Lily’s question: Only a few people ended up getting rich from the Gold Rush, most earned little more than they had started with. Remember the Charlie Chaplin movie “The Gold Rush?”

Lily: Oh yeah, a great movie! So this NFT market is like the Gold Rush Déjà vu all over again.

Greg: Well, yes and no. NFTs are way more sophisticated than digging gold in the old days. For example, all gold miners were competing with each other to find gold, not to create anything that nature did not directly provide. NFT market is full of creators and creativities.

Joy: The gold miners also only needed to find gold and never worried about finding buyers, because everyone wanted to buy gold once the miners found it.

Kimberly: We also did not hear stories like how the miners coordinated to form any brand. Basically zero branding power from miners.

Emily: Yeah, the gold buyers were not much better. They just sit there waiting for the miners to come to them. Today the NFT buyers are highly developed but also highly divided. Some are willing to pay big ticket price for items that others couldn’t care less.

Lily: So you are saying it is the divided buyers who pushed up the price of some but not all NFT items.

Emily: I think so. The article from the Washington Post I was talking about yesterday described how a few NFT marketers like “Bored Apes” and “CryptoPunks” managed to win big from selling NFT collectables.

Kimberly: I have a feeling that the current NFT market emerges more by design than by random events.

Emily: You are right on that. According to the article, the cryptocurrency and blockchain community wanted to use NFTs to help them gain market traction and acceptance. “They want to create a sensation, to whip up publicity for NFTs in particular and cryptocurrencies in general.”

Lily: No kidding. Nothing else is more powerful than the headline news that some people became overnight rich from NFTs.

Emily: A good example is this NFT artist named Mike Winkelmann, who called himself Beeple, flew to the art fair in Miami in private jet — this is the same guy whose entire wardrobe used to be worth about $600, and by the time he landed in the airport, his bank account received $56 million from the record sale at Christie’s. It’s like a jackpot.

Lily: Cases like that add fuel to more speculation.

Emily: It sure did. Let me quote the Washington Post article again: After the “Beeple sale” on March 11, 2021, the total NFT sales reached $12 billion by early December last year, up from $546 million in the first half of 2021.

Joy: In the worst case scenario we may even see “winner takes all,” when a few winners can charge any high prices they want while the rest receive almost nothing.

Greg: We have had a wonderful conversation so far, but we may want to go deeper than talking about a newspaper article. I believe we can learn a lot from the industrial insiders. I came upon this wonderful blog last night that I have not finished reading yet. It had an interesting title of “The Non-Fungible Token Bible: Everything you need to know about NFT,” published in January 2020 by this guy named Devin Finzer, the co-founder of OpenSea, the largest NFT marketplace in the world. How about we all read that blog and come back to talk more tomorrow? I can send the link of that blog to your phone if you are interested.

Everyone except Jason and Cleo agrees to read the blog and that is the end of the second family conversation on NFT.

Categories
Cryptocurrencies & NFTs Financial talks at dinner table

First Family Conversation on Non-Fungible Tokens

Three days had passed since the Kingston family last had a long chat at the dinner time. Today Emily raised a question that interested everyone.

Emily: So has anybody heard about the thing called NFT?

(All except Cleo raised hands)

Emily: Jason, you heard about NFT, too?

Jason: Yeah, why, you found it hard to believe? A friend of mine was a big fan and he kept telling me all the stories about NFT, like some kid in Asia sold his selfies for more than a million dollars.

Kimberly: Oh I heard crazier stories than that: This Seattle based teenager artist built a collection of NFTs valued at more than $26 million.

Emily: Yeah, I heard that one, too. The funny thing is that the kid was selling stickers and prints for $5 a piece online just one year ago.

Kimberly: So who can tell us what NFT stands for?

Lily: I know the first letter “N” means “Non” and “T” for “Token” or Tokens. Someone once told me the meaning of “F” but I forgot it now.

Emily: “F” means “Fungible,” which means “replaceable” or interchangeable with something identical. So “Non-fungible” basically means not replaceable or not identical to something else. But if something is non replaceable, it must be unique. That’s what it says.

NFTs that Emily asked about

Lily: How do you know so much about NFT? Are you gonna create your NFT and sell it?

Emily: Not really. Our arts teacher asked us to write an essay on NFT.

(Turning to Greg), speaking of the essay, dad, what do you think of NFT? Do you see much value in it?

I look at some NFTs and I don’t understand why someone’s selfie deserves more than a million dollars.

Greg: It’s natural to feel that way, and I am sure you are not the only one with questions. I myself have been thinking of it a lot lately.

Kimberly: Do you look at it more from a financial perspective or a commonsense perspective?

Greg: It’s interesting you put that way, but I believe both ways are needed to fully understand NFTs. In fact, not only financial and commonsense but we may even need an artistic perspective. After all, those non-fungible tokens are mostly seen as arts.

Joy: Wow. This conversation is getting more interesting! I have a nonprofit client who is familiar with arts and museums. We were chatting the other day about NFT, and I asked her opinion. She said the same thing you just said that it is easier to understand NFTs if you know arts.

Emily: Oh good! I’m glad you guys mentioned that. I came across this interesting and fairly recent article on Washington Post published last December that talked about just that. It’s pretty long but let me pull it out on my phone to give you a few highlights.

Greg: Is the one written by a journalist who went to Miami, Florida to cover American’s most prestigious art fair, I forgot what is called.

Emily: Yeah. It is Art Basel Miami Beach, which attracts the world’s art collectors.

Greg: That’s a good piece and I liked it. It has lots of information in it and brought us the latest stories in NFTs, crypto, blockchain and the art world.

Emily: I think so, too. Anyway, the first section of the article has a definition that says an NFT “is a unique digital representation of a good — for our purposes, a work of art. It’s akin to a certificate of authenticity or a deed and it’s recorded on a blockchain.”

Jason: I have heard the name before but what exactly is a “blockchain?”

Emily: I’ve learned a lot this time from writing my essay. The best way to define a blockchain conceptually is a “distributed and decentralized database.” In case you did not know, a database is just a bunch of data stored in a computer that allow people to access for information.

Blockchains asked by Jason

Jason: Well, how do they make database “distributed and decentralized?”

Emily: The key is to create “information redundancy.” Before blockchain, databases are separated and isolated from each other, each owned by a different organization.

Jason: What’s wrong with that?

Emily: Well, to see what’s wrong, the first thing is to recognize that those databases are centralized because no matter how big a company or a government agency is, it only has one database.

Kimberly: Yeah, now that you mentioned it, a good example is IRS, the government agency that collects citizens’ taxes. Pretty much everyone pays taxes, right? And the IRS has a huge database for all taxpayers’ transactions, not just this year but way back. Think of how many records there must be in the IRS database.

Emily: Exactly. The danger with centralized databases is that they attract hackers. But even without hackers there are natural disasters like fires, earthquakes, floods, power outages and lightening hits. It is called “a single point of failure” for all centralized databases.

Jason: So blockchain stores the same database with multiple copies in multiple places.

Emily: Exactly. Multiple databases are decentralized because there is not a single database that controls all others. All duplicated databases are equal and if one database is hacked or corrupted, others won’t, and we can quickly find out the bad copy and kick it out of the system.

Greg: What you said is a nice conceptual definition of blockchain, I want to add a technical note to it: Anything registered in a blockchain is truly non-fungible, meaning unique or unreplaceable because it is designed to be that way. A blockchain is a bunch of blocks each with a unique time stamps with information in it and these blocks are connected to form a chain.

Kimberly: So let’s see, that means no two Bitcoins are identical because they each will have a unique trace on the blockchain, right?

Greg: That’s exactly right and that’s the beauty of digital currency, unlike fiat currency, where one dollar is just one dollar, the one dollar bill on my left hand is fungible or identical with the one dollar bill on my right hand.

Jason: What is fiat currency?

Greg: Oh, it’s just a fancy way to call the traditional money issued by government, like the American dollars we use every day, or Japanese Yen, or the Euros.

Joy: Speaking of fiat money, I’m thinking that no two dollars are identical, either. I bet the one dollar on your left hand will have a different serial number than the one on your right hand. However, the two dollars do have identical value, just like two Bitcoins.

Greg: That’s right, I forgot about the serial numbers. Good point!

Jason: I have a few dollar bills left from my lunch money. Let’s see: Yeah, this bill has a serial number F30022163M, the other one says K61556364C. They are different.

Kimberly: If blockchain can make two units of the same digital currency, like Bitcoin or Ethereum, non-fungible or unique, it certainly will make all NFTs unique, right?

Lily: I think we should separate two kinds of uniqueness. Yes you are right to say that on a blockchain everything is unique, and nothing is identical with anything else, even between two bitcoins or two dollar bills. But do we really care about that kind of technical or trivial uniqueness? I doubt it.

Emily: That’s an excellent point. I was thinking along the same line but with NFTs. One big problem with NFTs is that people can always make copies of the same popular NFTs for themselves. If they all registered their individual copies on a blockchain, they will be unique in some ways, like when they were entered, and who the owners are. But from commonsense perspective, that kind of uniqueness is really no big deal, as these copies are all identical except for the blockchain generated uniqueness.

Kimberly: I like the term “blockchain generated uniqueness.”

Joy: So the issue is how we maintain “commonsense uniqueness” above and beyond the “blockchain uniqueness.”

Jason: But why does commonsense uniqueness matter?

Kimberly: Because we human beings all want to be unique; you don’t want to be just a carbon copy of someone else, even with someone you love or admire, right?

Greg: Going back to what Emily said, the problem we face today is not scarcity but the opposite of it: abundance. We can easily copy and paste anything digital that in a commonsense view are identical to each other. This is very different from the old days when making an identical copy of the masterpiece was impossible. The best one could do was to have a fake one that looks like the original, never identical.

Lily: Like back in the days for Picasso, Davinci or Monet, right?

Greg: Yeah. Today’s technologies allow us to produce identical copies so easily and in so large quantity that the “art hackers” in the old days could not even dream about.

Joy: So you are saying the big question today is how to restore or save scarcity in the age of abundance?

Greg: Exactly.  

Joy: Well, one way to do that is through algorithms. Like the number of Bitcoin was programmed to be no more than 21 million ever. There, not only do we have scarcity but know exactly the size of supply.

Emily: The same logic works in NFTs. It turns out owning a free and identical copy is not enough for some people, they want to possess the one that is original and are willing to pay a big price for that.

Greg: So Bitcoin scarcity is created by the creator of the digital currency, but for NFTs scarcity is saved by some buyers on the demand side.

Kimberly: That makes sense, because there is always only one original NFT, regardless of how many free copies out there.

Lily: Not only that, but the more copies out there, the more valuable the original becomes. Whoever bought the original can always brag that she or he bought the one out of a million, which sounds much better than one out of 10.

Greg: This gets me to think that the basis of value today is different from Picasso’s time. In the old days, the value of artworks was attached to the artists, who were “the one and the only” to produce masterpieces that nobody else could match.

Joy: So only masters could produce masterpieces. Using the chicken-egg metaphor, the masters were “chickens,” masterpieces were “eggs,” and the chickens always came first. As long as there is only one Picasso in the world, the value of his artworks would be fixed, regardless of how many imitations there are.

Kimberly: But isn’t that always the case that a particular artist produces a particular piece of artwork, so the “chickens” always come first?

Greg: Well, yes and no. Different NFTs will be produced by different artists just like before but today’s artists do not have the same “monopoly power” as Picasso had. Think of what has changed?

Kimberly: Well, like you said earlier, there is an abundance of virtually identical copies today.

Greg: Yes. In the old days there was just one copy for each masterpiece of Picasso for the entire world. It’s a natural monopoly. If you wanted to see the masterpiece, you visited a museum. But nowadays everyone can have a personal copy of a NFT if she wants.  

Kimberly: But that’s just easy accessibility, which does not kill monopoly power. There is still only one Picasso in the world.

Greg: There is only one Kimberly Kingston in the world, does that give you the same monopoly power as Picasso? Monopoly power is not about being the only one, but about your capability of changing or influencing the behaviors of others.

Kimberly: I see. Sounds like the abundance of identical copies shifts the power from NFT artists and sellers to buyers and we have a “buyers’ market” for NFTs.  

Lily: But wait, in a buyers’ market the price goes down, why do we still see some skyrocketing prices in the NFT market?

Greg: Interesting question. But it’s getting late and let’s continue the conversation tomorrow.

Video highlight of what the family has learned on NFTs
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
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.