By Samuel S. Guzik, CrowdFundBeat special guest editor,  Guzik & Associate

Many have railed against what can be argued is the irrationality of protecting non-accredited investors from themselves, i.e. the accredited investor definition.   The definition was crafted by the SEC back in the early 1980’s as the centerpiece of what has been the most utilized method for companies to raise capital in an offering not registered with the SEC, Regulation D.

In simple terms, if a company wishes to raise capital without registering its offering with the SEC, it can utilize the Regulation D “safe harbor” created by the SEC to sell securities to both accredited and unaccredited investors alike. In practice, however, most issuers have excluded non-accredited investors from their Regulation D offerings. Why? Once an issuer includes even a single non-accredited investor in the offering, stringent (as in onerous) disclosure requirements kick in.

In 2011, courtesy of a 2,000 page bill known as the Dodd-Frank Act, Congress threw more gasoline on the fire of the oft perceived inequality of treating non-accredited investors differently. It altered the definition of accredited investor – raising the bar even higher. Previously, an individual with an income of $200,000 ($300,000 with spouse) or a net worth of more than $1 million would qualify.  Then along came Dodd-Frank: now mandating that the SEC must exclude the equity in an individual’s principal residence in calculating net worth eligibility.  Simple math tells us that this can only shrink the pool of accredited investors even further, adding to the legions of non-accredited investors.

Then Title II of the JOBS Act came along in 2012, allowing issuers to publicly solicit their “private placements” under Rule 506 of Regulation D, but with a catch: no non-accredited investors could participate – disclosure or no disclosure – and investors would need to prove up their accredited investor credentials before they could invest.

And finally, Dodd-Frank also requires the SEC to periodically review the “accredited investor” definition, a process currently in progress and subject to comment by the public.

The result has been an ongoing and increasingly raging controversy over both the definition of “accredited investor” itself, as well as the wisdom of even having such a concept. I, for the most part, have stayed outside the fray, given both the voluminous number of opinions, and advocates, on both sides of the issue and the somewhat “lose-lose” nature of the issue. In fact it’s been more than two years since I weighed in on this issue publicly – in Crowdfund Insider.

Why “lose-lose”? You see, from my perspective, as both an American and a securities lawyer, it makes great sense to expand the pool of accredited investors. This will both increase the available pool of capital to small and emerging businesses, and allow the average American, regardless of income or net worth, to carry a more diversified investment portfolio.

In my view, this leaves but two regulatory choices. One, expand the accredited investor definition. But each time you draw new lines, those who do not fall within the new line will undoubtedly feel aggrieved – many of them rightly so. Two, throw out the definition entirely.  Some have argued for this. But now, one brave soul, a newly minted lawyer no less, has taken his case to Federal court, filing a lawsuit against the SEC and its Chair, Mary Jo White in June 2016.

The case is styled Morello v. White (2:cv-04440), launched in the Central District of California. The Plaintiff, Chase Morello, according to public records, is a second year associate at a reputable corporate law firm in Southern California. Mr. Morello has launched this on his own, as both the Plaintiff and his own lawyer.   His firm’s name nowhere appears on the pleading. That’s probably a good thing, if nothing else given the unfortunate misspelling of the lead defendant’s name, SEC Chair White (misspelled Mary Joe White), not exactly a good start out of the gate.   The lawsuit seeks to have the accredited investor definition declared unconstitutional, on a number of independent grounds, and seeks to have the lawsuit certified as a class action.  The SEC’s response is due in early October – undoubtedly a lengthy motion seeking to dismiss the Complaint at the pleading stage.

My educated guess is that this lawsuit will go nowhere – fast.  But this is now in the hands of a Federal judge in Los Angeles.

So get the popcorn out, but don’t invest in a big supply. In my view, better to work this issue through the SEC rulemaking process and – where appropriate – through the legislative process.  Yes, it is slow going, to be sure, but after all, it took over 80 years of legislation and rulemaking to get us here.

More often than not, slow and steady wins the race.

P.S. – For those of you who sympathize with Mr. Morello, but wish to participate in a more subdued manner, you may want to sign the Petition he filed with the White House last week to declare the accredited investor definition unconstitutional.






Samuel S. Guzik

Guzik & Associates

1875 Century Park East, Suite 700

Los Angeles, CA  90067

Telephone: 310-914-8600




Tags: , , , , , , , , , , , , ,


This RSS feed URL is deprecated, please update. New URLs can be found in the footers at [...]

Oregon BusinessFor-profit giving normalized as crowdfunding maturesOregon BusinessNot so long ago, people might have thought twice about donating money to a for-profit company. But In the few years since crowdfunding debuted, thousands of companies have used online fundraising platfor [...]

New York PostToy tycoon leads crowdfunding effort to save Toys R Us brandNew York PostA budding campaign to buy Toys 'R' Us has hit a few bumps in the road, but its billionaire backer said he's just getting started. More On: toys “r” us · The best way to shop Toys [...]

ARL nowCrowdfunding Campaign Launched for Ballston Homicide VictimARL nowGiandoni, who would have turned 41 on Wednesday, was found dead in his home in Ballston last weekend. Police later determined his death to have been a homicide, though few details have been revealed about the cir [...]

4NEW To Implement Ocular KYC solution before completing ...BitcoinistLondon, England. 4NEW announced today that it will pause the current fundraising efforts on March 27, three days earlier than planned in order to allow the team to complete implementation of their KYC/Anti- Money Lau [...]

Jacaranda FMCape Town couple turns to crowdfunding for their dream weddingJacaranda FMMartea Roos and Marcel Steenkamp would love to be able to afford the wedding of their dreams. Would you donate towards their goal? Read on to see how you can help them, or find another worthy crowdfu [...]

Allentown Morning CallBillionaire toy executive hopes to raise $800 million via crowdfunding to save Toys R UsAllentown Morning CallIsaac Larian, the billionaire toy executive behind Bratz, Little Tikes and L.O.L. Surprise! dolls, wants to save Toys R Us. (Christopher Lee / Bloomberg) [...]

Honolulu Star-AdvertiserIndie film 'Waikiki' seeks crowdfunding boostHonolulu Star-AdvertiserDanielle Zalopany, right, stars as Kea in the independent feature “Waikiki,” set for release later this year. Zalopany is a Po'okela Award-winning actress and has appeared on CB [...]

KGO-TVGroup launches crowdfunding campaign for homeless on San ...KGO-TVTake it to the Streets has launched a $50000 crowdfunding campaign to provide housing and services for homeless young adults.and more » [...]

Multiple Sclerosis News TodayAmerican Brain Foundation Starts Crowdfunding Campaign to Help Fight MSMultiple Sclerosis News TodayThe American Brain Foundation has started a crowdfunding campaign to support research that could lead to treatments for multiple sclerosis and other autoimm [...]

CFB Finance


  • Crowdfunding
  • Crowdfund
  • Peer to Peer Lending
  • FinTech
  • Reg A+
  • Reg CF
  • Crowdfunding USA

Press Release

Live Crowdfunding .tv

What's Next Step in Regulation A+ JOBS ACTS Title IIII :L Interview : Steve Cinelli with Brian Korn Securities and Crowdfunding/Peer-to-Peer Lending Lawyer, Watch more video library | Conference | Interview | Campaign Showcase | Research | Education |