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1) An investment of money 2) In a common enterprise 3) With the expectation of profit 4) To be derived from the efforts of others

It fails on points 2 and 4.



The common enterprise here is, similar to the argument against cryptocurrencies, the efforts to make money off of these cards; and the efforts of others here is the work being put in by the company which printed these cards to market them and design this game. If the company suddenly disappeared tomorrow--or began to mismanage their product line, potentially suddenly printing a bunch of cards they previously claimed were rare--the value of these cards would plummet, as people aren't just buying them for their prior established value: they expect that this company will defend their IP portfolio, release expansions with new content, and continue the efforts to market this game in stores.

If you disagree with this analysis, maybe you can show how this is (or is not) different to, say, Axie Infinity (a crypto company even I actually do feel is a security under this test--with centralized servers managing centrally minted NFTs--and which is very similar in nature to Pokémon as it is clearly a rip-off of their IP) or (to take a more standard example) Filecoin (one which the SEC claims is a security in their lawsuit against Coinbase)?


The common enterprise test doesn't work for things where the primary purpose for most owners is to own the card (for playing, as with Pokemon, or for display, as with baseball cards or most other collectibles). That a small fraction of owners acquire collectibles to trade in them as valuable assets doesn't taint the fundamental character of the collectible for everyone else. (Contrast to crypto, where everyone buys crypto for the purpose of ultimately selling it for higher value since it has no other use or reason for existing.)

Axie Infinity might run afoul of the Howrey test because of deliberate design decisions in the game which make it nothing like Pokemon: the ability to cash-out in-game currency, and the ability to loan out axies to other players and make money from their in-game efforts. Unlike Pokemon cards, which can be loaned out by players without any involvement from the company printing the cards, loaning out axies and earning money from other players' playing required the active involvement of the company behind the game. Moreover, making money (and especially making money pyramid-style from loaning out your axies to other players) was marketed as the primary selling point for the game for over a year, in contrast to Pokemon and baseball cards where the printing companies have never made claims about the value of the cards or the putative income that could be derived from engaging in a career trading them.


"Through the efforts of others" is the activity of the block chain itself, which is engaging in economic activity in pursuit of profit. So, Axie infinity and FileCoin clearly fall under that.

There's no common enterprise for ordinary collectibles. A truly analogous situation would be if pokemon represented a share in the pokemon company where you could participate in the profits derived from pokemon merchandising or something like that.




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