Should Size or Wealth Equal Sophistication in Federal Securities Laws?

Oguss, Greg | December 1, 2012

In the wake of the financial crisis of 2008, there has been substantial debate about the wisdom of offering exemptions from federal securities laws for investment products sold solely to wealthy institutions and individuals, such as the accredited investor provisions of Regulation D of the Securities Act of 1933. Following an examination of case studies dealing with the derivatives craze of the mid-1990s and the aftermath of the 2008 housing market meltdown, this Comment concludes that the nowantiquated wealth-based benchmarks in such exemptions have resulted in the chronic underprotection of larger public and private investors. Accordingly, this Comment argues that several revisions to the existing benchmarks and related regulations should be considered. First, the numerical benchmarks in such exemptions should be inflation-adjusted and inflation-indexed from now on. Second, a series of graduated caps on the purchase of exempt investment products as a percentage of net worth should be introduced. Finally, the standard of care imposed on brokerdealers who market and sell investment products to accredited and unaccredited investors alike should be raised to the equivalent of the fiduciary duty imposed on registered investment advisers.