So 50% purchased more than $1000. To do what, buy stickers and themes?
I'd wager than even the "under $1000" crowd will be 90% cryptocurrency investors holding it as part of a "balanced" portfolio.
I think its really necessary to differentiate between ICOs and cryptocurrency in general.
> [a digital token] is not a representation of a financial interest in a company or partnership, including an ownership interest or revenue share
The interesting thing about securities is that although we think of a security as a "thing" (like Kin) its actually a transaction - as in a "securities transaction". Meaning with two transactions involving Kin, one transaction could be a securities transaction, and the other could not.
This is more obvious when you think of the original Howey test. Selling an orange grove is not a securities transaction, but selling an orange grove where you also promise to cultivate the asset for the profit of the investor is.
Selling $5 of Kin in to a Kik user doesn't sound like a securities transaction, but selling $5 Million to a VC fund does (though probably one exempt from registration).
They expect to consume at least some of the coins... but they also anticipate potential profit from some of the coins.
So are the coins "securities?" Are only some of them? (Presumably, $500 - whatever the buyer intended to consume.)
You can see that Howey's focus on investor expectation isn't particularly helpful in where that line is drawn.
You might find SEC v Lauer interesting. Where a non-existent hypothetical investment was determined to be a security. As well as SEC v Edwards, where a fixed-rate leaseback agreement for payphones was determined to be a security.
My main point was that if Howey had 100 fungible orange groves, and one was sold as a security and 99 were sold straight up, that wouldn't make all 100 orange groves as a security, would it?
That said, if I'm reading this article correctly, all that happened was that the SEC issued guidance on the legality (that is, not legal) of various forms of ICO. That doesn't mean ICOs were legal before, just that the SEC hadn't issued guidance about it.
If your argument in court is "well nobody told me specifically that my exact actions were illegal, because your honor, I stabbed that guy while hopping on one foot on a Tuesday while it was raining", then the court tends to take a dim view of it. I don't know the case, but if Kik's argument was "well we sold a security before anyone told us specifically that this thing is actually a security", it might pan out in a similar fashion.
The argument that you launched your ICO before <insert event>, so you should get a pass is unlikely to fly with anyone. Either it violates the laws or it didn't, and since the relevant laws haven't changed in decades, if it violated them, you're in trouble.
(Also note that the financial industry is rife with people promoting scams and arguing they don't quite violate the law because of some technicality. This never works.)