Dodd Frank

On May 10, the International Monetary Policy and Trade Subcommittee of the House Committee on Financial Services held a hearing to address the costs and consequences of Dodd-Frank Section 1502, which requires the SEC to issue conflict minerals disclosure rules.  The subcommittee, chaired by Rep. Gary Miller (R-Calif.), examined whether Section 1502 may impose substantial compliance costs on U.S. companies while failing to serve its intended purpose of curbing militia violence in the Democratic Republic of Congo.  Led by Chairman Miller, some congressmen expressed concern that Section 1502 has resulted in a de facto embargo on conflict minerals from the Congo, as companies increasingly source minerals from other regions to avoid the disclosure obligations of Section 1502.  Others, including Rep. Gwen Moore (D-Wis.) and Rep. David Scott (D-Ga.), asserted that, as long as U.S. companies and consumers are funding violence in the Congo, the U.S. must take action to address the crisis in the region.  The witnesses were similarly divided on these issues.  Mvemba Dizolele, a visiting fellow at Stanford University’s Hoover Institution, and Dr. Laura Seay, an assistant professor of political science at Morehouse College, indicated that Section 1502 does not address the sources of militia funding or the causes of the conflict, while Bishop Nicolas Djomo Lola, a Catholic bishop from the Congo, stated that mining is the primary source of funding for the militias.  In addition, Frank Vargo of the National Association of Manufacturers, Stephen Lamar of the American Apparel & Footware Association, and Steve Pudles, Chairman of the Board of IPC – Association Connecting Electronics Industries and CEO of Spectral Response LLC, testified about the high costs of implementation of the conflict minerals rules by U.S. companies.  They urged that the rules include a phase-in period, flexibility in the due diligence process, and a temporary, “indeterminate origin” category of conflict minerals that issuers may use while the infrastructure necessary to trace conflict minerals supply chains is under development.  While an SEC representative did not testify at the hearing, SEC Chairman Schapiro last indicated, in early March, that the SEC expects to issue its final conflict minerals rules by the middle of the year. 

On December 21, 2011, the Securities and Exchange Commission has codified the Dodd-Frank Act’s change to the net worth test for “accredited investors,” a definition used in SEC rules adopted under the Securities Act of 1933, as amended.  The accredited investor test is set forth in Securities Act Rule 501(a) and can be met by a natural person with a net worth in excess of $1,000,000.  Since its enactment on July 21, 2010, Section 413(a) of the Dodd-Frank Act has excluded primary residences from “accredited investor” net worth calculations.  The new SEC amendment clarifies that mortgage debt on an investor’s primary residence generally will not be treated as a liability for the purposes of the net worth qualification, except to the extent that the debt is higher than the estimated fair market value of the residence, thus avoiding double deduction of the residence and the mortgage debt.  However, any increase in the amount of mortgage debt secured by a primary residence in the 60 days prior to a sale of securities will count as a liability in an investor’s net worth calculation when the increase is not related to the purchase of that primary residence.  The SEC intends this to prevent investors from borrowing against their primary residence and using the proceeds of the newly incurred debt to inflate net worth calculations in order to qualify as an “accredited investor,” while not penalizing individuals who purchase a primary residence prior to the purchase of a security.  The revised rule also includes a grandfathering clause providing that the old net worth test will apply to a securityholder’s right to purchase additional securities of the issuer, if such right existed prior to July 20, 2010 and the individual qualified as an accredited investor on the basis of net worth as of the time such right was acquired.