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EU’s Proposed Regulation on Conflict Minerals – Part II

Posted in Conflict Mineral Compliance, News and Analysis, Resources and Tools

Editors Note: A prior version of this blog post incorrectly attributed the sentence in bold below. We sincerely apologize for any confusion this may have caused. This version has now been corrected. 

Views on the Draft Regulation

The draft EU conflict minerals regulation is a voluntary system of certification, which covers imports of the minerals into the EU. The US rule, in contrast, is mandatory and applies to any US reporting company that manufactures products or contracts with others to manufacture products for it. The European Commission has been critical of the US rule, which in its view has encouraged companies to divert their purchases away from central Africa to avoid the cost and effort of complying with the due diligence reporting requirements.

It appears that European industry welcomes the voluntary nature of the reporting requirements. This was confirmed by a public consultation conducted by the Commission in July 2013, where it was suggested that self-certification will increase transparency for the sourcing of minerals. At the December 5, 2014 INTA committee public hearing, many MEPs and industry representatives generally supported the proposed regulation and were in favor of the voluntary self-certification element of the proposal. However, a representative speaker from Eurometaux, an industry group, did note that the proposed EU regulation “provides a number of uncertainties that might harm the competitiveness of European companies.”

Not surprisingly, there are those that would prefer a mandatory approach to the reporting requirements. Critics of the EU proposal, including NGOs and civil society groups, have argued that the reporting requirements should be mandatory, ensuring compliance by mining companies and creating what they call a “harmonious” approach to the issue between the EU and the US. At the INTA committee hearing, the representative from Global Witness called for mandatory due diligence requirements and for the proposal to cover all minerals entering the EU (whether as raw materials or in products), not only the imports of the minerals as currently proposed.

Discussions and debates have also taken place in the Parliament over which minerals should be covered by the proposal. It has been suggested that the regulation should cover other minerals, such as copper, jade and coal.

As a result of the Parliament elections in May 2014, the composition of the Parliament has become more sharply divided between right and left, with the S&D (Socialists & Democrats) and the EPP (Christian Democrats) as the two majority parties. The Liberal Group (ALDE) lost most of their MEPs in the May 2014 elections. This change in composition has led to a Parliament that is more divided on issues such as conflict minerals, with the industry-friendly, right-leaning parties supporting the current relatively “business-friendly” proposal, while the Greens and left-leaning parties opposing it. The Liberal Group is divided and therefore may hold the deciding vote on the proposed conflict minerals regulation.

Outlook

There is a great deal of uncertainty regarding the future of the proposed regulation and the timing of the proceedings. Given the fact that both the Parliament and the Council, as co-legislators, have the right to propose amendments, the regulation that is ultimately adopted could look quite different from the draft regulation as originally proposed by the Commission.

The Parliament is concerned with the mandatory or voluntary nature of the proposal, the type of businesses subject to the regulation, the minerals covered and the geographical scope of the proposed regulation. The Council’s Working Party on Trade Questions has discussed the draft regulation since April 2014, but it is too early to tell what issues will be of greatest concern to the Council.

We will continue to post updates as the committees of Parliament, the Council and the plenary Parliament consider the proposed regulation. One thing is clear: there is significant disagreement as to which provisions will be included in the final EU conflict minerals compliance regulation. 

EU’s Proposed Regulation on Conflict Minerals – Part I

Posted in Conflict Mineral Compliance, News and Analysis, Resources and Tools

The European Union (EU) is considering legislation that would regulate the importation of conflict minerals into the EU. The European Commission announced its proposed regulation on March 5, 2014. The draft regulation contains proposals for a voluntary self-certification process for importers of conflict minerals (tin, tantalum, and tungsten and gold) into the EU from anywhere in the world.

Legislative Process

The EU legislative process is complex and involves three main players: the European Commission, the European Parliament, and the European Council. The European Commission proposes legislation. The European Parliament and the Council (made up of the member states) must agree on and adopt the legislation before it can become law.

The Parliament and the Council may each propose amendments to the draft regulation and must reach consensus on the final proposal (in a process called “codecision”). The Parliament takes the lead in this process and assigns the matter to a committee for consideration. The Committee on International Trade (INTA) has taken on the role as the lead Parliament committee for the conflict minerals draft regulation. On September 3, 2014, the INTA committee appointed Iuliu Winkler, a Romanian member of Parliament (MEP) from the Christian Democrat parliamentary group, as Rapporteur. The INTA committee will invite views of other parties, such as NGOs, industry trade associations and civil society groups. All interested parties are allowed to make their views known to MEPs. Any MEP may propose an amendment to the draft regulation, and the INTA committee will vote on all the amendments and produce its draft regulation.

The Parliament’s Committee on Development (DEVE) will draft an “opinion” on the draft regulation, which takes the form of amendments and a short explanation (or “justification”). The members of the committee will vote on it and they will then submit it to the INTA committee, who will accept it as an annex to their draft without voting on it as long as it falls within the exclusive competence of DEVE. The INTA committee must then vote on their own draft and accept or reject the amendments put forward for it.

This draft regulation will then be voted on by the Parliament as a whole in the Plenary session. To be approved, the draft must be adopted by a simple majority of the Parliament (i.e., a majority of members voting on the position). The Council will then either accept the draft of the Parliament or amend it further.

It is important to note that given the nature of this codecision process, the final regulation may bear little resemblance to the draft regulation originally proposed by the Commission. Parliament has the right to propose and accept any amendments to the regulation that they choose. Because the Parliament is a political body, many interest groups lobby MEPs to propose amendments to the proposed regulation. Because of the various parties that have the right to propose amendments, the final regulation could be dramatically different from the draft regulation.

The INTA committee hosted a public hearing on the issue on December 4, 2014. At that hearing, interested parties were invited address the committee with their concerns and opinions about the proposed regulation. The INTA committee is currently considering the draft regulation.

Next Steps

The next steps for the draft regulation will be the votes in the parliamentary committees. The vote in the DEVE committee is currently scheduled for February 2015. The DEVE opinion will be annexed to the INTA draft and the INTA committee will then vote to finalize the draft regulation, that vote is scheduled for March 2015. Following these votes, the draft regulation will be voted on by the Parliament in its entirety in a Plenary session.

The draft regulation will then be sent to the Council, where the member states will vote to accept or amend the proposal of the Parliament. Should the Council propose its own amendment to the draft regulation, the revised proposal would be sent back to the Parliament for it to consider and propose any additional amendments and vote on it, all within a time limit of three months.

It is not clear when the conflict minerals regulation will be finalized. If the voting in the Parliament goes quickly and the Council is able to reach consensus without sending the proposal back to the Parliament, the regulation could be finalized by the end of 2015. However, because this is a controversial proposal, we believe that there will be some debate and disagreement in the Parliament and Council and their committees. If that does occur, the process could continue into next year.

In our next post, we will discuss the views of certain of the stakeholders and the outlook for next steps in the process.

Conflict Minerals Rule Weekly Recap #95 – February 2, 2015

Posted in Weekly Recaps
January 23, 2015 – January 30, 2015
The summaries provided in this Weekly Recap do not necessarily represent the views of Squire Patton Boggs (US) LLP and should not be deemed to be endorsements of them. The Recap is intended to be a compilation of articles and events to encourage discussion within the conflict minerals community and to keep our readers updated on the most recent developments.

AICPA Releases New Round of Conflict Minerals Guidance

The American Institute of Certified Public Accountants released its latest round of conflict minerals guidance focusing this time on management representations and practitioner responsibility with respect to gaining an understanding of internal controls in performing an IPSA.

The AICPA guidance, among other things, provides several examples of  representations a practitioner might obtain from management.

Please click here to find additional AICPA conflict minerals guidance.

Comment: We expect that the discussion of management representations will turn up the “ambient stress levels” for companies that are concerned about having to provide an IPSA.

Conflict Minerals Rule: The Disclosure Law of the Land

In the latest entry of Deloitte’s Insights posted on the WSJ’s Risk & Compliance Journal website, Matt Kelly, Editor and Publisher of Compliance Week, provided the following response when asked “[t]he Conflict Minerals Rule continues to be a challenge for many organizations. Where does that stand in your view?”:

Ultimately, the SEC’s conflict minerals rule will become the disclosure law of the land. The rules likely won’t be knocked down anytime soon, particularly when you look at the Federal Appellate Court [D.C. Circuit] ruling that said the SEC did a proper cost-benefit analysis of the rules’ impact on companies. That was the most important part of the ruling. The first amendment issue around the requirement to disclose what products are or are not conflict free is more of a cosmetic issue for companies compared to the bigger compliance issue of effectively examining their supply chains. So the SEC now has a roadmap for the type of due diligence it performs when doing a cost-benefit analysis of similar rules. That could make future challenges to new and existing rules difficult to win. That’s not necessarily a conclusion compliance officers would like to hear, but it’s how I believe it will shake out over the long term.

Global Witness Highlights UN Report About Conflict Gold

Global Witness summarized a UN report which found that gold is being smuggled out of the Democratic Republic of Congo. Global Witness states, “[g]old smuggled out of the Democratic Republic of Congo, some from rebel areas, has been sold on the international market through Uganda and the United Arab Emirates in the past year.”

According to Global Witness, the UN report also found “[s]erious failings in the ITRI supply chain scheme known as iTSCi as investigators were able to obtain the plastic tags used to certify minerals as “conflict free” in Congo and Rwanda, which would allow coltan from unknown sources to enter the supply chain.”

For more on the UN report, please see the Global Witness article.

Conflict Minerals Rule Weekly Recap #94 – January 26, 2015

Posted in Weekly Recaps
January 16, 2015 – January 23, 2015
The summaries provided in this Weekly Recap do not necessarily represent the views of Squire Patton Boggs (US) LLP and should not be deemed to be endorsements of them. The Recap is intended to be a compilation of articles and events to encourage discussion within the conflict minerals community and to keep our readers updated on the most recent developments.

ERA Technology’s Head of Regulatory Compliance Discusses Results of Recent Survey

In an EBN article titled Conflict Minerals: A Happy New Year? Chris Robertson, Head of Regulatory Compliance at ERA Technology, discusses a survey circulated in a recent ERA Technology webinar that asked viewers “what they thought would be the most effective compliance solution for conflict minerals in the EU.” The survey was released on the backdrop of the EU Commission’s proposed regulation last year, which would create a voluntary process in which importers of tin, tantalum, tungsten and gold into the EU can self-certify that they do not contribute to financing armed conflict.

The survey options for “most effective solution” were as follows: (1) Voluntary self-certification of importers of minerals/metals, (2) Mandatory certification of importers of minerals/metals, and (3) mandatory due diligence by the final product manufacturer/importer into the EU.

Mr. Robertson presented the results, “Our predominantly downstream industry audience identified the most effective approach, with 58% of the vote, as mandatory certification of importers (i.e. regulation). Meanwhile, 24% favoured mandatory due diligence by the party putting the product on the market in the EU (similar to the U.S. law). The Commission’s proposed approach (option 1) attracted only 19%.”

To view the survey results and Mr. Robertson’s observations please see Conflict Minerals: A Happy New Year?

Conflict Minerals Rule and Recycling Businesses

Posted in Conflict Mineral Compliance, News and Analysis

For purposes of the conflict minerals rule, conflict minerals that are sourced from recycled or scrap materials are deemed to be “DRC conflict free” and require disclosure only about the inquiry that led the reporting company to conclude that they were from those recycled or scrap sources.  That means that for products whose conflict minerals are from recycled or scrap sources, there is no requirement to undertake due diligence or to report their processing facilities, countries of origin, or efforts to determine mine or location or origin.

Conflict minerals from recycled and scrap sources are given special treatment under the Rule because, as a practical matter, it is impossible to trace the mine of origin of materials that are recovered from existing products and materials and combined into the recycled or scrap material.  

What Qualifies as Recycled or Scrap

Conflict minerals are considered to be from recycled or scrap sources if they are from recycled metals — reclaimed end-user products, post-consumer products, or scrap processed metals created during product manufacturing.  Recycled metal includes excess, obsolete, defective and scrap metal materials that contain refined or processed metals that are appropriate to recycle in the production of conflict minerals.  But, tin, tantalum, tungsten, or gold that are partially processed, unprocessed or are a by-product from another ore are not considered to be “recycled” under the Rule.

Impact of Recycled or Scrap Sources on Compliance Costs

Because of the Rule’s special treatment of conflict minerals from recycled or scrap sources, companies that can source 100% from recycled or scrap can significantly reduce the cost of their conflict minerals compliance efforts. 

If a company’s conflict minerals are confirmed to be 100% from recycled or scrap sources, it can avoid undertaking due diligence, it will not have to analyze supplier due diligence responses, and it will not be required to prepare or file a Conflict Minerals Report with the SEC.  Depending upon the company, its products and the size of its supply chain, avoiding those steps could equate to hundreds of thousands of dollars per year of savings.  It will be difficult for a significant number of companies to source 100% from recycled or scrap.  But, for those that already source a significant portion from recycled or scrap sources, it could be worth considering a push to source completely from recycled or scrap because of the potential savings.     

Further, as more companies announce that their products are “conflict-free,” their suppliers will have to find ways to confirm and assure that their conflict minerals are conflict-free.  Some of those suppliers may turn to recycled or scrap sources as one way to meet their customers’ requirements.

Increasing Value of Recycled or Scrap Sources

All these factors should make recycled and scrap sources of conflict minerals more attractive, and (over time) should increase the value of recycled and scrap as a source of conflict minerals.  An increased demand for recycled and scrap materials will in turn further promote e-waste and other recycling programs.  And, such demand may encourage the expansion, and even creation, of businesses that can confirm that their conflict minerals are 100% from recycled and scrap sources.  

Conflict Minerals Rule Weekly Recap #93 – January 19, 2015

Posted in Weekly Recaps
January 9, 2015 – January 16, 2015
The summaries provided in this Weekly Recap do not necessarily represent the views of Squire Patton Boggs (US) LLP and should not be deemed to be endorsements of them. The Recap is intended to be a compilation of articles and events to encourage discussion within the conflict minerals community and to keep our readers updated on the most recent developments.

Elm Sustainability: IPSA Trigger May Be Delayed

In a recent blog post, the folks over at Elm Sustainability Partners LLC discuss whether the SEC’s April 29, 2014 statement suspending the product description requirement will extend the DRC conflict undeterminable temporary two-year transition period (and the associated waiver of the requirement to obtain an IPSA) that is set to expire for non-smaller reporting companies.

Elm Sustainability ponders, “given the current suspension of the mandate to use the term ‘DRC Conflict Undeterminable,’  does the deferral [to obtain an IPSA] actually end?” Elm Sustainability then notes, “we are seeing a much greater demand from customers to have their publicly-traded suppliers obtain an IPSA for the 2014 filing” and it concludes “on one hand, we see the IPSA deadline being set a year ahead of the requirements, and on the other hand we see the possibility of the deadline extending beyond the 2014 filing year.”

Note: As of today, the answer for calendar year 2014 reporting is that no IPSA is required unless a company claims that a product is “DRC conflict free.” In the SEC’s April 2014 statement, Keith Higgins wrote: “Pending further action, an IPSA will not be required unless a company voluntarily elects to describe a product as ‘DRC conflict free’ in its Conflict Minerals Report.” But note, after the Court of Appeals renders a decision on the rehearing, we believe the SEC will likely issue new guidance that could change the answer.

Students Groups Meet with Brandeis University’s Faculty Senate; Make Edits to Conflict-Free Proposal

According to The Justice, Brandeis University’s independent student newspaper, student groups are proposing that the university take into consideration a supplier’s conflict minerals policy when making procurement decisions.

The proposal is still fluid such that the students are considering narrowing the scope of the proposal to the “bulk of the hardware” that the university purchases (i.e., computers, laptops, copiers, scanners, and servers). A former student representative stated, “It’s mostly about educating people … and to start phasing out … products from irresponsible practices.”

Conflict Minerals Rule – Complying With The Rule In The Meantime

Posted in Conflict Mineral Compliance, Legal Challenges, News and Analysis

Companies are unsure of how to prepare for the year 2 filings while the legal challenge is still pending and there is uncertainty about exactly what the reporting requirements will be when the filing deadline finally arrives.

Legal Challenge to the Conflict Minerals Rule

In the last few posts, we’ve discussed the legal challenge to the conflict minerals rule.  It started in October 2012, just a month after the SEC issued the conflict minerals rule, when industry groups filed a lawsuit challenging the rule.   Just 6 weeks before the year 1 filings were due, the Court of Appeals for the DC Circuit ruled that the product description requirement in the rule was unconstitutional.

April 2014 SEC Statement

Shortly after that decision, because the legal challenge was still pending and because of the uncertainty that resulted from the Court of Appeals decision, the SEC issued a partial stay of the rule and implemented the statement of the Director of Corporation Finance that modified the reporting requirements of the rule.  The April 2014 SEC Statement provided guidance on what the SEC expected to see in the year 1 conflict minerals filings in light of the decision by the Court of Appeals:

  • Companies filing only the Form SD must disclose and briefly describe their reasonable country of origin inquiry.
  • Companies that must file a conflict minerals report must describe their due diligence.
  • No product descriptions are required in a conflict minerals report. But, for products that would have been identified as either “DRC conflict undeterminable” or “not found to be ‘DRC conflict free,’” companies are required to disclose the smelters/refiners, the country of origin,  and the efforts to determine the mine or location of origin of the conflict minerals in those products.
  • Companies may use product descriptions if they wish.
  • Until further notice, an independent private sector audit is only required if a company chooses to describe a product as “DRC conflict free.”

As we discussed in our April 29, 2014 blog, the SEC stated that this guidance would apply until the SEC or a court directed otherwise.  As of today, the SEC has not provided any change or update to this guidance, and no court has directed otherwise.

What to Do in the Meantime

There is no guarantee that the Court of Appeals will render its decision before the June 1, 2015 reporting deadline. (The deadline for making the conflict minerals filings for year 2 is May 31, and because that is a Sunday, the deadline for filing will be Monday, June 1, 2015.)   And, we do not know whether the Court of Appeals will uphold the decision that the product description requirement in the conflict minerals rule is a violation of the First Amendment.

But, after the Court of Appeals renders its decision, the SEC is likely to issue guidance to clarify what the SEC expects companies to include in their filings in light of that decision.  Until that happens, the conflict minerals rule is still in effect as modified by the partial stay imposed after the Court of Appeals decision, and the April 2014 SEC Statement still describes what the SEC expects in the filings.  So, companies should continue to gather information about the country of origin of their conflict minerals and the source and chain of custody of any conflict minerals that originate (or may originate) from the Congo or adjoining countries.  They will need that information in order to report what is required by the conflict minerals rule as in effect on the filing date.

Next, we’ll discuss some common ways in which year 1 filings failed to reflect the guidance in the April 2014 SEC Statement.

 

Rehearing of NAM v. SEC — Part 3 (Brief of NAM)

Posted in Legal Challenges, News and Analysis

As required by the November 18, 2014 order, NAM filed its Supplemental Brief on December 29, 2014, arguing that the April 2014 decision by the Court of Appeals should be upheld and that the product description required by the conflict minerals rule violates the First Amendment. 

Brief of NAM

NAM argues that the product description required by the conflict minerals rule is the equivalent of a governmental message that is not purely “factual and uncontroversial.”  Instead, according to NAM, (1) the description is ideological and conveys a moral judgment, (2) it is misleading because the product description implies something about the product that may not be true, and (3) it is contentious because it conveys the government’s position on a controversial subject.   

Therefore, NAM argues that because the required disclosure is not purely factual and uncontroversial, the limited scrutiny of the Zauderer case does not apply here.  Further, NAM argues that the product description is not “commercial speech,” so it should be subject to a heightened scrutiny.    Finally, NAM also argues that the required description is not related to the government’s goal for the conflict minerals rule (which was to reduce the violence in the Congo).

Next Steps

Now that the briefs have been filed, we are waiting for an indication of whether an oral argument will take place and then for a decision about whether the product description requirement of the conflict minerals rule violates the First Amendment. 

In the meantime, companies should continue to gather the information about the country of origin of their conflict minerals and the source and chain of custody of any conflict minerals that originate (or may originate) from the Congo or adjoining countries.   The decision of the Court of Appeals could come as late as the spring, so companies should not put their compliance efforts on hold.   They need to continue their efforts so that they are prepared to comply with the requirements of the conflict minerals rule — regardless of what decision the Court of Appeals makes on the First Amendment issue.

Rehearing of NAM v. SEC — Part 2 (Briefs of SEC, Amnesty International, Global Witness and Free Speech for People)

Posted in Legal Challenges, News and Analysis

As required by the November 18, 2014 order, the parties in NAM v. SEC filed briefs responding to questions about the First Amendment issue that were posed by the Court of Appeals.  This post summarizes the briefs filed by the parties that want the product description requirements of the conflict minerals rule to be upheld. 

Brief of the SEC

On December 8, 2014, the SEC filed its Supplemental Brief, in which it argues that the product description requirement of the conflict minerals rule does not violate the First Amendment.  The SEC argues that the limited scrutiny of Zauderer is the appropriate test to review the required disclosure in this case and that the product description required by the conflict minerals rule is “factual and uncontroversial” and is therefore constitutional. 

The SEC’s arguments are: 

1.  The product descriptions are “factual” because they are objectively determinable by concluding that the facts fit a particular definition included in the conflict minerals rule and are not merely a matter of opinion.  The product descriptions are “uncontroversial” even if the topic discussed is controversial and even if the company making the statement would rather remain silent.  The SEC also questions NAM’s argument that the required product description leaves consumers with a misleading impression of a connection between the product and the conflict in the Congo.

2.  Even if Zauderer did not apply here, the disclosure requirements would survive the intermediate scrutiny of Central Hudson.  The product description requirements are “reasonably crafted,” and issuers are permitted to include additional statements to provide their own message about the product and the conflict minerals compliance process.

Brief of Amnesty International

On December 8, Amnesty International filed its Supplemental Brief as well.  In its brief, it argues that in light of the decision in American Meat, the limited scrutiny of Zauderer applies in this case.  It argues that the product description required by the conflict minerals rule is factual and uncontroversial, stating that it is possible for a product description to be accurate and truthful even if the message it communicates is controversial.  It argues that a statement of “not been found to be ‘DRC conflict free’” is merely a statement about the results of the company’s investigation and does not indicate moral culpability in the armed conflict in the Congo.

Brief of Global Witness and Free Speech for People

Global Witness and Free Speech for People filed a brief of amici curiae, in which they argue that the product description required by the conflict minerals rule is a statement of fact regardless of the subject matter of the statement and regardless of any reaction that others might have to that statement.

We’ll provide a summary of NAM’s arguments in our next post.

Rehearing of NAM v. SEC — Part 1 (Background)

Posted in Legal Challenges, News and Analysis

The SEC, Amnesty International, Global Witness, Free Speech for People, and the National Association of Manufacturers have all filed their briefs, and we are now waiting for the decision on the rehearing — do portions of the SEC’s conflict minerals rule violate the First Amendment?  What follows is an introduction to what is being considered. 

As you may recall, on April 14, 2014, a panel for the Court of Appeals for the District of Columbia Circuit in NAM v. SEC upheld most of the SEC’s conflict minerals rule.  But, it found that requiring issuers to describe products as “not found to be ‘DRC conflict-free’” was compelled speech that violated the issuers’ First Amendment rights.

In limited situations, government regulations require companies to make statement about their products or services.  For example, these requirements may require companies to tell the contents of their product or the cost of the product.   Of course, there are many government regulations requiring public companies to make statements about their operations and financial results.  When a government regulation that compels speech is challenged on First Amendment grounds, the court must determine what level of scrutiny to use in considering whether the regulation violates the First Amendment. In NAM v. SEC, the court considered a couple of levels of scrutiny:  a limited scrutiny under the Zauderer case (which makes it easier for a governmental requirement to survive a challenge) and intermediate scrutiny under the Central Hudson case (which is a more rigorous review and makes it harder for a government requirement to survive a challenge).

Without going through all the constitutional history and arguments, the Court of Appeals held  that the Zauderer test was not the appropriate level of scrutiny to use here.  It went on to conclude that the product descriptions required by the conflict minerals rule did not survive the intermediate scrutiny under Central Hudson.

But, on July 29, 2014, in another case (American Meat), the same Court of Appeals (en banc), expanded the situations in which the more limited scrutiny of Zauderer applies.  It held that Zauderer applies to a government requirement for commercial disclosure of “purely factual and uncontroversial information” about a product or service and not only when the disclosure is intended to prevent deception.

Because the en banc Court of Appeals in American Meat expanded the applicability of Zauderer, the SEC asked the Court of Appeals for a rehearing of NAM v. SEC in light of that more recent en banc decision.  

On November 18, 2014, a panel rehearing was granted, and the court required the parties to file briefs on the following questions:

  1.  What effect does the decision in American Meat have on the conflict minerals rule’s First Amendment issue?
  2. What does “purely factual and uncontroversial information” mean?
  3. Is the decision about what is “uncontroversial information” a question of fact or a question of law?

We’ll provide summaries of the parties’ arguments next week.