News

Appeal Filed on Conflict Minerals Decision

News Brief
September 16, 2013

By Cydney Posner

The Chamber of Commerce, National Association of Manufacturers and the Business Roundtable have filed their appeal to the district court decision upholding the conflicts minerals rules.  The appeal identifies six issues for appeal:

1. Whether the SEC erroneously concluded it lacked authority to adopt a de minimis exception, and whether its refusal to adopt such an exception is arbitrary and capricious.

2. Whether the SEC's interpretation of "did originate" in the statute to mean "may have originated" is erroneous or arbitrary and capricious.

3. Whether the SEC's interpretation of the statute as including non-manufacturers who contract for the manufacture of products is erroneous or arbitrary and capricious.

4. Whether providing a shorter transition period for larger companies is arbitrary and capricious, when larger companies will have to depend on smaller companies to comply with the rule.

5. Whether the SEC violated its duty to conduct an adequate analysis of the impact of its rule.

6. Whether the statutory provision and the rule compel speech in violation of the First Amendment.

The brief characterizes as arbitrary decisions by the SEC to reject alternatives that would have greatly reduced the rule's astronomical costs. For example, the brief argues that the SEC first concluded that the statute precluded adoption of a de minimis exception for trace amounts of minerals –the SEC's hands were tied. But as reported by Reuters (see my email of 7/2/13), when the SEC's attorneys made that claim in the oral argument, the judge "challenged this view, at one point telling the SEC attorney that the agency ‘seems to have not really performed the legal analysis correctly' and that the agency has an ‘inherent authority in every case' to issue an exemption." Recognizing its error, the brief states, the SEC then contended at oral argument that, despite what the release states, the agency actually rejected a de minimis exception as a matter of discretion. Even if this "revisionist history" were accepted, the brief argues, the rule would still fail as arbitrary and capricious because the refusal to create a de minimis exception greatly increases costs without any benefits.

Oral argument has not yet been scheduled.

This content is provided for general informational purposes only, and your access or use of the content does not create an attorney-client relationship between you or your organization and Cooley LLP, Cooley (UK) LLP, or any other affiliated practice or entity (collectively referred to as “Cooley”). By accessing this content, you agree that the information provided does not constitute legal or other professional advice. This content is not a substitute for obtaining legal advice from a qualified attorney licensed in your jurisdiction and you should not act or refrain from acting based on this content. This content may be changed without notice. It is not guaranteed to be complete, correct or up to date, and it may not reflect the most current legal developments. Prior results do not guarantee a similar outcome. Do not send any confidential information to Cooley, as we do not have any duty to keep any information you provide to us confidential. This content may be considered Attorney Advertising and is subject to our legal notices.