Archives: Legal Challenges

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Costs of Conflict Minerals Compliance (1 of 3) – Why lower than expected?

The out-of-pocket costs of compliance with the SEC conflict minerals rule have been lower than those originally estimated by industry and by the SEC. But, it’s not because the original estimates were over-stated or inflated.  And, these lower than expected out-of-pocket costs don’t mean that business’ concerns about compliance were misplaced.  These lower costs have resulted mostly (but … Continue Reading

EU Conflict Minerals Regulation — Finally Published in the Official Journal!

At long last, the EU Conflict Minerals Regulation was published today in the Official Journal of the European Union.  The EU Conflict Minerals Regulation 2017 (as published) will enter into force 20 days after publication (June 8, 2017) and take effect 1 month after that (July 8, 2017). The effective date is January 2021, but companies would … Continue Reading

Conflict Minerals Rule — Will It Stay or Will It Go?

With only 19 days left before the SECs Form SD filing deadline, there is still a lot of talk about consequences of the SECs April 7, 2017 Statement (“April 2017 Statement”).  In that statement, the SEC staff indicated that it would not recommend enforcement action to the Commission if a company that is otherwise required to … Continue Reading

Conflict Minerals Report No Longer Required? Wait — Not So Fast

Those hoping for updated SEC guidance that would relieve or reduce companies’ conflict minerals diligence and disclosure obligations for calendar year 2016 got only a fraction of what they wanted. Last Friday, April 7, 2017, the SECs Acting Chair Michael Piwowar issued a statement that said “it is difficult to conceive of a circumstance that … Continue Reading

Conflict Minerals Rule Legal Challenge — Done and Done

“Hear ye, Hear ye.”  The parties to the legal challenge of the SECs conflict minerals rule have agreed that no further court proceedings are necessary and have requested that the US District Court enter a judgment in accordance with the decisions of the Court of Appeals — that is, that certain elements of the rule violated reporting entities’ First … Continue Reading

Executive Order on Conflict Minerals? Not Yet

You may have read that President Trump signed an executive order repealing or waiving the SEC conflict minerals rule.  Not true — at least not yet.  As of February 14th, no executive order relating to the conflict minerals rule had been signed.  But, a leaked draft of an executive order and rumors about a plan … Continue Reading

Piwowar’s Statement on SECs Conflict Minerals Rule – We Could Have Seen It Coming

In a move that has already been widely reported, on January 31, 2017, the SEC’s Acting Chairman Michael Piwowar issued a statement on the SECs conflict minerals rule, in which he directed the SEC staff to “consider whether the [April] 2014 guidance is still appropriate and whether any additional relief is appropriate in the interim.” … Continue Reading

SEC Conflict Minerals Rule Legal Challenge is Over – But Not For Good

What Just Happened? April 7, 2016 was the deadline for filing a petition for writ of certiorari to the US Supreme Court seeking a review of the court of appeals’ decision on the conflict minerals rule.   The SEC did not file the petition, and Amnesty International (the intervenor in the case) did not make the … Continue Reading

Resource Extraction Payment Disclosure Rule — You Have More Time To Comment

In a January 21, 2016 release titled Extension of Comment Period for Disclosure of Payments by Resource Extraction Issuers, the Securities and Exchange Commission extended the comment periods for the revised proposed Rule 13q-1 (and the related amendment to Form SD).  That proposed rule relates to the disclosure of payments by resource extraction issuers in connection with the commercial development of … Continue Reading

Here We Go Again — New Proposed Resource Extraction Payment Rules

As we discussed in posts on September 3, 2015 and on October 2, 2015, Section 1504 of the Dodd-Frank Wall Street Reform and Consumer Protection Act required the SEC to issue resource extraction payment rules.  The purpose of those rules was to promote the federal government’s desire for transparency about resource extraction payments made by commercial entities to governments around the world.   The initial … Continue Reading

Conflict Minerals Rehearing Denied — Is the Legal Challenge Over?

In a summary order handed down yesterday, November 9, 2015, the Court of Appeals for the D.C. Circuit rejected the petitions of the SEC and Amnesty International for a rehearing en banc of the Court’s August 2015 opinion (which reaffirmed its prior ruling that a small portion of the Conflict Minerals Rule violates the First Amendment). So, is the … Continue Reading

SEC Seeks Rehearing in Conflict Minerals Case

October 2, 2015 marked another step in the continuing legal challenge of the conflict minerals rule.  The SEC and Amnesty International filed petitions requesting an en banc rehearing of the April 2014 and the August 2015 D.C. Court of Appeals panel decisions, in an effort to reverse the ruling that struck down portions of the … Continue Reading

SEC Proposes To Vote On Final Resource Extraction Rule By June 27, 2016

In a previous post, we provided a summary of both the maneuverings of the SEC’s resource extraction rule after it was issued and Oxfam’s suit to speed up the SEC’s development of a revised rule after it was vacated.  As a reminder, on September 2, 2015 (nearly a year after the Oxfam case was filed), a federal judge gave the SEC a … Continue Reading

Conflict Minerals Decision – Now What?

Since December 2014, the U.S. Court of Appeals for the District of Columbia Circuit has been considering (again) the decision it reached previously about the constitutionality of the Conflict Minerals Rule. In an August 18, 2015 order, the Court of Appeals confirmed its earlier ruling that the Conflict Minerals Rule violates the First Amendment to … Continue Reading

Conflict Minerals Rule – Complying With The Rule In The Meantime

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 … Continue Reading

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

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 … Continue Reading

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

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.  … Continue Reading

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

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 … Continue Reading

Conflict Minerals Rule Case To Be Reheard

We’ve been waiting for months.  And now, the Court of Appeals for the District of Columbia has granted the SEC’s petition for rehearing of the court’s April 2014 decision that found that certain disclosure requirements of the conflict minerals rule violated the First Amendment.  The parties have been ordered to file supplemental briefs to discuss: The effect of … Continue Reading

Conflict Minerals – Motion to Stay DENIED

In a ruling today, May 14, the Court of Appeals denied the emergency motion to stay the Conflict Minerals Rule.  So, companies should complete their analysis and, if necessary, their drafting of Form SDs and Conflict Minerals Reports to be ready to file by the June 2 deadline.  However, remember that on May 2, the SEC issued a partial … Continue Reading

Conflict Minerals Legal Challenge — SEC, NAM, Industry Coalition and Amnesty International Briefs Filed

Between May 8 and May 13, briefs on the trade associations’ emergency motion for stay were filed by the SEC, the trade association petitioners, an industry coalition, and Amnesty International.  Two steps remain —   First, the oral argument in American Meat Institute, which is set for May 19.  American Meat Institute is a case involving a First Amendment … Continue Reading

Second Form SD and Conflict Minerals Report Filed

Today, Monday May 12, the second Form SD and Conflict Minerals Report was filed with the SEC by Affymetrix, Inc.  Affymetrix described itself as a “provider of life science products and molecular diagnostic products.”  Consistent with our usual practice, we will not provide a critique of the filing here.  However, it is worth noting that, like … Continue Reading

Conflict Minerals — Industry Groups File Motion For Full Stay in Response to SEC Partial Stay

On May 2, the SEC issued a partial stay of the Conflict Minerals Rule.  This partial stay implements the substance of the statement of the Director of Corporation Finance that was released on Tuesday, April 29th.  Our  blog post of April 29th  summarizes the SEC Statement.  As they indicated they would, the trade groups that challenged the Conflict Minerals Rule filed a … Continue Reading
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