Since the early 1930s, federal
government regulators have found it challenging to protect investors in private
offerings and securities while simultaneously sustaining the growth of
start-ups and other young companies - companies which many believe are
responsible for the majority of job growth in the United States. Balancing this
task had been forefront in the mind of the Securities and Exchange Commission
(“SEC”) for years. Eventually, the SEC coined the term “accredited investor,”
thereby shaping the investment landscape ever since. This distinction was
implemented by the SEC to protect investors who did not have the sophistication
nor the resources to obtain disclosures and to evaluate private securities offerings.
By creating this standard, the SEC felt comfortable allowing individuals
with the financial means and sophistication to participate in these private
securities offerings, without the full protection of federal or state
securities laws.
According to Regulation D of the
Securities Act of 1933, the term accredited investor
refers to any investor who has maintained a certain level of income or net
worth and who is able to participate in private placement of securities.
It also allows an investor to participate without being counted toward
the maximum number of investors that are otherwise permitted in an offering
exempted under Regulation D. In July of 2010, President Obama signed the Dodd-Frank Wall Street Reform and Consumer
Protection Act, which made an important amendment
to the definition, in that the value of a primary residence may no longer be
included in an individual's net worth. This amendment came in the wake of the
rising – and then falling – of real estate prices across the country. This
dramatic bubble led to the concern that the value of a personal residence might
be based on overoptimistic perceptions, and that the inclusion of that personal
residence in the “net worth” criteria of an individual's wealth might be
inappropriate.
While it may be most common to think
of accredited investors as individuals, this group also includes banks,
insurance companies, employee benefit plans, and trusts. For an
individual, though, in order to qualify as an accredited investor, he or she
must meet one of the following criteria:
- Earn an annual income exceeding $200,000 or joint
income exceeding $300,000 together with a spouse.
- Have a net worth exceeding $1 million - excluding one’s
primary residence.
- Be a general partner, executive officer, director or a
related combination thereof for the issuer of a security being offered.
The SEC considers these accredited
investors to have sufficient amount of wealth, as to not need the protection of
federal and state securities laws to the same extent that non-accredited
investors do. In other words, they have the ability to fend for themselves.
The question of how the SEC can both
protect individual investors while still allowing for growth of startups and
other young companies will continue to be a hot topic in the coming years. As
the SEC proved when they removed the value of primary residency in the
valuation of accredited investors, they are paying close attention. We can
expect that the SEC will continue to implement reforms that could limit the
number of accredited investors in years to come. Stay tuned.



















