Tag Archives: compelled commercial speech

Corp Fin provides relief on conflict minerals in light of final judgment in National Association of Manufacturers v. SEC

by Cydney Posner

Today, in light of the entry of final judgment by the D.C. District Court in National Association of Manufacturers v. SEC, Corp Fin issued an Updated Statement on the Effect of the Court of Appeals Decision on the Conflict Minerals Rule that provides substantial relief to companies subject to the rule. You may recall that, in that case, the Court held that a part of the conflict minerals rule violated the First Amendment. Corp Fin’s Updated Statement advises that companies will not face enforcement if they perform only a reasonable country-of-origin inquiry and file only a Form SD and do not conduct detailed supply-chain due diligence or prepare and file a conflict minerals report (Item 1.01(c) of Form SD) or have an audit performed — even if they would otherwise be required to do so under the rule. In a separate Statement, Acting SEC Chair Michael Piwowar commented that the “primary function of the extensive and costly requirements for due diligence on the source and chain of custody of conflict minerals set forth in paragraph (c) of Item 1.01 of Form SD is to enable companies to make the disclosure found to be unconstitutional. In light of the foregoing regulatory uncertainties, until these issues are resolved, it is difficult to conceive of a circumstance that would counsel in favor of enforcing Item 1.01(c) of Form SD.” Continue reading

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Filed under Corporate Governance, Securities

No petition for cert in Natl Assoc. of Manufacturers v. SEC, the conflict minerals case

by Cydney Posner

No reason to keep checking the SCOTUS website for the SEC’s cert petition in Natl Assoc. of Manufacturers v. SEC, the conflict minerals case. According to this letter from Attorney General Loretta Lynch to House Speaker Paul Ryan (courtesy of thecorporatecounsel.net blog), “[a]lthough the Commission defended the constitutionality of the conflict-minerals disclosure regime in the court of appeals, the Department of Justice has decided, in consultation with the Commission, not to file a petition for a writ of certiorari seeking review of the court of appeals’ decision.” Continue reading

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Filed under Litigation, Securities

U.S. Chamber of Commerce won’t challenge pay-ratio rules — at least for now — and will focus instead on conflict minerals challenge

by Cydney Posner

The WSJ is reporting that, contrary to all expectations (including my own), “the U.S. Chamber of Commerce isn’t planning to mount a legal challenge to the Securities and Exchange Commission’s pay ratio rule.” Continue reading

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Filed under Executive Compensation, Securities

Is a lot more at stake in the conflict minerals case than the conflict minerals disclosure rules?

by Cydney Posner

An amicus brief filed in the conflict minerals case, National Association of Manufacturers, Inc. v. SEC, was submitted this week by a group of anti-smoking  and other organizations dedicated to protecting public health: Truth Initiative, Public Health Law Center, National Association of County and City Health Officials, Campaign for Tobacco-Free Kids, American Cancer Society Cancer Action Network and Tobacco Control Legal Consortium.  If you’re like me, you did a double-take when you saw the list of amici, wondering why they have any interest in the conflict minerals case. It turns out that they believe they have a significant interest: they argue that the case involves important questions, “not just to those concerned about conditions in the Democratic Republic of the Congo, but also to organizations (like amici) that rely on disclosures to foster public health, warn of environmental hazards, and protect the public in a variety of important contexts.” Continue reading

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Filed under Litigation, Securities

Three-judge panel of D.C. Circuit again holds that mandatory disclosure requirement of conflict minerals rule violates First Amendment

by Cydney Posner

In November 2014, the D.C. Circuit Court of Appeals granted the petitions of the SEC and Amnesty International for panel rehearing in connection with the conflict minerals case, National Association of Manufacturers, Inc. v. SEC. Today, a three-judge panel of the D.C. Circuit, by a vote of two to one,  reaffirmed its initial judgment that the requirement in the conflict minerals rule to disclose whether companies’ products were “not found to be DRC conflict free” amounted to “compelled speech” in violation of companies’ First Amendment rights. Is another en banc review on the horizon?  How will the SEC address the decision?  Continue reading

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Filed under Litigation, Securities