by Cydney Posner
In the lawsuit filed by the National Association of Manufacturers, U.S. Chamber of Commerce and Business Roundtable against the SEC in connection with the conflict minerals rules, both the SEC and Amnesty International (as Intervenors-Appellees) have filed petitions with the D.C. Circuit requesting a rehearing en banc regarding the majority opinion’s invalidation on First Amendment grounds of the requirement in the conflict minerals rules to disclose whether products are DRC conflict free. Both petitioners requested that the court hold the petitions in abeyance pending issuance of the en banc decision in another case (American Meat Institute) on the same legal issue — the applicable standard of review for compelled commercial speech disclosures where deception of consumers is not an issue. You might recall that the majority opinion had almost invited the “parties in this case to participate in the court’s en banc consideration of this important First Amendment Question.” It is possible that the court may consolidate the cases so that all parties could participate in the en banc proceeding. (See these Cooley Alerts: SEC’s Final Rules on Conflict Minerals Disclosure Expected to Have Broad Impact, http://www.cooley.com/SEC-issues-guidance-on-conflict-minerals-rules, http://www.cooley.com/SECs-conflict-minerals-rules-survive-court-challenge and http://www.cooley.com/key-part-of-SECs-conflict-minerals-rules-struck-down-on-dirst-amendment-grounds.)
