The National Association of Manufacturers and the U.S. Chamber of Commerce have initiated a legal challenge against the Securities and Exchange Commission over a regulation that mandates the disclosure of the use of “conflict minerals” in supply chains.
The petition for review was filed on Friday, with an order issued Monday by the U.S. Court of Appeals for the District of Columbia. Although a full brief, outlining the plaintiff's strategy, remains forthcoming, the plaintiffs do request “that the rule be modified or set aside in whole or in part.”
The court, in response to the petition, established a near-term timetable for the petitioners to follow in the weeks ahead. The first batch of documents, including procedural motions, if any, and a “statement of issues to be raised” are due by Nov. 21, 2012. Dispositive Motions, if any, are to be filed by Dec. 6.
“This is really the opening salvo,” says Michael Littenberg, a partner at law firm Schulte Roth & Zabel. “The petitioners haven't yet fully framed or disclosed what their arguments are for challenging the rule. That's to come down the road. We are not at the stage where people are going to be submitting their full blown briefs.”
Littenberg said it will be important to watch for how the challenge impacts ongoing compliance efforts.
“I think what we'll see is that the petitioners end up filing is a motion to stay the effectiveness of the rule if the SEC itself doesn't voluntarily stay the effectiveness during the dependency of the case,” he says. “It is likely to mean the conflict minerals rule will get stayed through 2013.”
Earlier this month, the U.S. Chamber of Commerce and a consortium of oil industry associations announced legal action to stop a final rule issued by the SEC that requires oil, gas and mining companies to disclose many of the payments made to governments for the right to extract resources. The complaint filed with the U.S. District Court for the District of Columbia is the latest in a series of lawsuits that have taken aim at SEC rules implementing provisions of the Dodd-Frank Act and led to speculation by many that the conflict minerals rule was next on the list.
The rule applies specifically to the mining of tin, tungsten, tantalum, and gold in war-torn Central Africa that funds militant groups. During the two years it took the SEC to develop its long-delayed final rule, critics in the world of manufacturing and retail made an argument that purging their supply chains of these substances would be an overly complex and costly challenge.
“The business community understands the seriousness of the strife occurring in the Democratic Republic of Congo and the need to implement solutions to bring an end to the violence," says a statement issued on Monday afternoon by the two plaintiffs, as well as the Business Roundtable. "However, while well-intentioned, the SEC's final rule on conflict minerals is not an effective approach to this complex issue. Our organizations suggested constructive changes to earlier proposals to make a final rule workable. However, the final conflict mineral rule imposes an unworkable, overly broad and burdensome system that will undermine jobs and growth and may not achieve Congress's overall objectives."