The SEC Modernizes the "Accredited Investor" Definition
On August 26, 2020, the Securities and Exchange Commission (SEC) adopted amendments to the definition of “accredited investor” to add new categories of natural persons and entities eligible to participate in our private capital markets and to make certain other modifications to the existing definition in Regulation D. According to the Final Rule release, the amendments are intended to “update and improve the definition to more effectively identify institutional and individual investors that have the knowledge and expertise to participate in those markets.” The SEC Final Rule is available here, the SEC’s press release announcing the adoption of the Final Rule is available here, and our prior blog post discussing the proposal of such rule is available here. The Final Rule will be effective in approximately 60 days.
The Commission vote broke along increasingly frequent philosophical lines. The two Democratic commissioners expressed concern that the SEC was abandoning its mission to protect potentially vulnerable investors for the sake of providing more access to capital for business. On the other hand, Chairman Clayton and the two Republican commissioners emphasized that the new rules were intended to allow more qualified investors to participate in private markets.
Historically, the test for who could qualify as an individual accreditor investor only took into account an individual’s income or net worth, i.e., only the wealthy qualified, and specifically included (i) any natural person whose individual net worth, or joint net worth with that person's spouse, excluding their primary residence, exceeded $1 million and (ii) any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and had a reasonable expectation of reaching the same income level in the current year. These levels have not been revised since they were adopted in 1982, which has been the most significant factor increasing the pool of individuals qualifying as accredited investors over that period.
Expanding eligibility has been on the SEC’s radar since at least 2015, when the SEC issued a report inviting public comments on numerous potential changes to the definition to broaden eligibility. In 2019, the SEC issued a concept release, which, among other things, included some quantitative analyses suggesting that the more highly educated, upper-class in the Northeast and Western United States regions were more likely to be eligible under the prior definition of accredited investor. Our prior blog discussing the SEC’s concept release from 2019 is available here. The Final Rule now addresses some of these concerns by providing access to more individuals and entities that may not meet certain thresholds but may nevertheless be equipped to protect themselves.
With respect to “knowledgeable employees”, such term will have the same definition as that in Rule 3c-5(a)(4), which includes, among other persons, (i) executive officers, directors, trustees, general partners, advisory board members, or persons serving similar capacities, of the private fund or an affiliated management person of the private fund, and (ii) employees of the private fund or an affiliated management person of the private fund (other than employees solely performing administrative functions) who, in connection with their duties, participate in the investment activities of such private fund for at least 12 months.
“Family offices” are also now included in the types of entities qualifying as accredited investors. The term “family offices” is defined by reference to Rule 202(a)(11)(G)-1 under the Investment Advisers Act of 1940, and generally includes an entity that has no clients other than family clients, is owned and exclusively controlled by the family, and does not hold itself out as an investment adviser. The “family offices” category requires family offices to have at least $5 million in assets under management, and only applies to family offices that are not formed for the specific purpose of acquiring the securities offered and whose purchase is directed by an individual that has financial and business knowledge and experience. “Family clients” of a family office are also included as accredited investors if they meet the same requirements. The SEC believes that family offices and their family clients have the ability to sustain the risk of loss of investment given their assets.