Net Worth Standard for Accredited Investors

Posted on December 22, 2011 by Jack J. Gravelle

Yesterday the SEC released its final rule regarding the exclusion of the value of a person’s primary residence when determining whether the person qualifies as an “accredited investor” on the basis of having a net worth in excess of $1 million. The accredited investor standards are used to determine certain exemptions from Securities Act registration for private offerings. Prior to Dodd-Frank, investors could include their primary residence in calculating a minimum net worth of more than $1,000,000. Section 413(a) of the Dodd-Frank Act changed the requirement to exclude the value of the primary residence, for which the SEC has now finalized rules.

But, expect more changes to the accredited investor concept. Section 415 of the Dodd-Frank Act requires the Comptroller General of the United States to conduct a “Study and Report on Accredited Investors” examining “the appropriate criteria for determining the financial thresholds or other criteria needed to qualify for accredited investor status and eligibility to invest in private funds.” The study is due by July 2013, and the SEC will likely use the study for future rule making.
 

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SEC Investor Protection Measures

Posted on June 4, 2009 by Jack J. Gravelle

The SEC is pursuing a slew of investor protection measures:

  • In public remarks earlier this year, SEC Commissioner Elisse Walter and Chairman Schapiro expressed support for say-on-pay proposals. Officially, the Staff does not object to say-on-pay resolutions in proxy materials if non-binding and advisory.
  • On May 20, 2009, the SEC voted to solicit public comment on proposed rules that will allow shareholders to nominate directors for election by using the company proxy materials. Depending on market capitalization, shareholders of 1-5% could nominate up to a quarter of board seats.
  • On June 3, 2009, the SEC announced the creation of an Investor Advisory Committee “to give investors a greater voice in the Commission’s work.”
  • Finally, also on June 3, 2009, Commissioner Luis A. Aguilar gave a speech at the Compliance Week Annual Conference calling for a shift in regulatory focus from financial institutions to “what is best for investors.” As examples of investors, Aguilar evokes individuals feeling pain “in their retirement nest eggs, their college savings plans and in their brokerage accounts.”

While there is no doubt that institutional investors are in favor of initiatives like say-on-pay and proxy access (perhaps as a tool to pressure boards) and the Investor Advisory Committee (numerous institutional investors are represented on the Committee), it remains to be seen whether such initiatives will provide any real benefits to retail investors like the individuals Commissioner Aguilar mentions.  As Commissioner Aguilar pointed out in a speech earlier this year, the percentage of retail investors who read proxy materials and vote has significantly declined in the past two years, which is perhaps attributable to e-proxy.  In any event, retail investors are either apathetic about their investments (unlikely) or attribute less value to increased shareholder power than the institutional investors.  
 

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