If you’re a subscriber to this newsletter, you likely already know that those in the crypto industry aren’t huge fans of the U.S. Securities and Exchange Commission and its chair, Gary Gensler. That’s because the SEC has taken the view, especially during Gensler’s tenure, that many tokens are securities and thus under its purview. That classification would completely change the way the industry operates.
It’s important to note that to be classified as an investment contract, a type of security, the focus is on how an asset is sold and how it functions—more than the nature of the asset itself. For example, the Howey test, the Supreme Court’s 1946 framework for determining whether a transaction represents an investment contract, focused on units of citrus grove land sold to investors.