Conflict Minerals

---

see debeers

see coltan

SEE DRC

Murdoch media continues scapegoating renewable energy in New Jersey

Published 10/21/25

Right-wing media are pushing hard to disparage New Jersey’s renewable energy investments, which they misleadingly blame for high electricity rates.

In 2025, New Jersey’s wholesale electric bills rose dramatically, with average residential customers seeing bills climb by roughly 17-20% per month. Next year, ratepayers can likely expect another 1.5 - 5% increase on top of that.

Several factors are contributing to the rate hikes in New Jersey. They include increased demand for electricity to power new data centers and New Jersey grid operator PJM Interconnection’s reported failure to quickly connect renewable projects to the grid. But news outlets owned by the Murdoch family — Fox Business and the editorial boards of The Wall Street Journal and the New York Post — are pinning the blame for electricity costs on renewable energy, insisting that eliminating subsidies for renewable energy and building more fossil fuel infrastructure in the state are among the answers to New Jersey’s cost-of-living crisis.

The Trump administration has taken this approach as well, scrapping billions in renewable energy projects. Increasingly, the consequences consumers are already experiencing elsewhere reveal that a crusade against renewable energy is unlikely to benefit New Jersey or the country as a whole.

Electricity bills have spiked in New Jersey, a result of changes in the state’s energy market

The rate hike has impacted customers of the regional transmission operator PJM Interconnection, which serves 13 states including New Jersey.Several factors — such as long waiting times for new projects to connect to the grid, growing energy demand, and fossil fuel projects becoming uneconomical and closing — led to tightened supply and caused a dramatic price spike. Regional Plan Association, [8/5/25; Inside Climate News, 8/18/25; Natural Resources Defense Council, 7/25/25]

State policymakers are frustrated with long timelines for renewable energy projects that could help drive down costs.In late September, Pennsylvania Gov. Josh Shapiro said, “We need to move more quickly on energy-producing projects, and we’ve got to hold down costs. If PJM cannot do that, then Pennsylvania will look to go it alone.” Shapiro, along with 10 other governors from PJM’s member states, “are requesting more say in how PJM allocates its resources and brings generation online,” according to Grist. And according to The Gothamist, although “New Jersey currently has 33 large-scale, shovel-ready solar projects awaiting approval by PJM … many could take a year or 18 months longer to get approval.” Grist, [10/15/25; The Gothamist, 8/19/25]

Murdoch media outlets, hosts, and guests misleadingly blame climate-friendly policies for high energy prices

Fox Business host Stuart Varney said he blames “green policies” for “skyrocketing electricity prices” in New Jersey.Fox Business, *Varney & Co.*, [10/16/25]

Fox Business host Jackie DeAngelis claimed that “idiotic proposals” like “investing in renewables” have “taken these rates up,” mentioning New Jersey.DeAngelis continued, “People see what happens when you have President Trump in versus Joe Biden and your gas prices come down and how that feels. We are suffering from these higher electricity prices in blue states because at the helm the governors like Phil Murphy, like Kathy Hochul, they won't do what they need to do to bring those prices down.” Fox Business, *The Big Money Show,*[10/3/25]

Varney said that Republican gubernatorial candidate Jack Ciattarelli “has a plan to bring energy prices down” while guest Steve Forbes chided current New Jersey Gov. Phil Murphy’s energy policies. Forbes said that popularity ratings are down for Murphy and New Jersey Democrats because “they won't build a pipeline from Pennsylvania, which has plenty of natural gas, which is low pollution, clean — they won't bring it in. And then windfarms — offshore, kill the whales, bring them onshore, you kill the birds. Not a good combination. And they call it pure energy — no, it's impure when you start with how they get those minerals out of the earth in Africa and elsewhere to make those windfarms.” Fox Business, *Varney & Co.*, [9/29/25]

The Wall Street Journal Editorial Board complained about New Jersey that “as always, Democrats blame business” for rate hikes “rather than change their bad policies,” which include “requiring that 100% of state power come from ‘clean energy’ by 2035.’” The Wall Street Journal, [9/28/25]

The New York Post Editorial Board said Democratic New Jersey gubernatorial candidate Sherrill’s plan to “tame costs” for residents includes “locking in pricey ‘clean energy’” and falsely claimed that “it’s precisely Democrats’ drive for zero emissions that has sent electric bills soaring.”The New York Post, [9/27/25; Regional Plan Association, 8/5/25]

The anti-renewable energy agenda right-wing media are promoting in New Jersey is playing out across the country, and many are questioning its logic

After the Trump administration announced it was canceling $8 billion in renewable energy and clean tech projects, some Republicans expressed concerns about projects in their states.Politico spoke to several lawmakers in red states who said they did not know what would become of major energy projects under the cuts, or had contacted the administration for “restoration of those things.” Politico, [10/14/25]

The governor of Utah recently spoke out against the Trump administration’s efforts to impede a massive solar project in Nevada.“This is how we lose the AI/energy arms race with China,” Republican Utah Gov. Spencer Cox wrote. He encouraged an “all-of-the-above approach to energy,” but emphasized that “incredible leaps in battery technology completely change the value proposition of solar in the right places.” According to Utility Dive, “The project’s National Environmental Policy Act status is listed as canceled on the Bureau of Land Management’s website.” The Interior Department denied cancelling the project, and said that applicants that were involved could eventually resubmit “individual proposals.“ Canary Media, 10/13/25; Utility Dive, [10/14/25; Twitter/X, 10/10/25]

The New York Times Editorial Board explained that Trump’s One Big Beautiful Bill Act will also likely drive up electricity prices. The Times pointed to an analysis from the consulting firm National Economic Research Associates, which found that the bill’s “ repeal of the tax credits alone may push electricity prices almost 10 percent higher than they would be otherwise by 2029.” The New York Times, [10/9/25]

A recent Politico analysis found that “states that embrace renewable energy are far more likely to save money for electricity consumers than those relying on fossil fuels or nuclear power.” Looking at data from the U.S. Energy Information Administration, Politico found that most states that get a higher than average percentage of their electricity from renewable sources “had below-average electricity rates in June” and that “states that have been the quickest to add wind and solar generation to the grid have had lower power prices.” Politico, [10/7/25]

### Fox Business viewers might not realize Trump's tariffs are massive taxes that have disrupted the economy

10/17/25 3:58 PM EDT

### Media Matters weekly newsletter, October 10

10/10/25 10:57 AM EDT

### Fox Business host Larry Kudlow urges Trump to seize on the shutdown to fire up to 500,000 more federal workers

10/07/25

:{---

---

an tom dispatch long

Trump's new greed deal the ultimate act of destruction the prophets have predicted - Alternet.org

...

“The U.S. government is rushing to give away our spiritual home before the courts can even rule — just like it rushed to erase Native people for generations,” said Nosie of Apache Stronghold following the decision. “This is the same violent pattern we have seen for centuries.”

While Trump’s antagonism toward Native sovereignty isn’t surprising, it may be puzzling why his administration is so concerned with the nation’s supply of critical minerals like Oak Flat’s copper. As he’s made clear, Trump believes climate change to be a hoax invented by China, and he’s done his best to impede the growth of the renewable energy sector. Yet, like many of Trump’s other bombastic policy proposals, the undercurrents here appear more driven by ego than by ideology.

Trump’s Not Green But Greed New Deal

If Donald Trump has one defining trait, it’s his need to dominate in almost any imaginable situation. Illustrated by his falsehoods and refusal to acknowledge Joe Biden’s victory in the 2020 election, he not only hates losing (and that’s putting it mildly!) but also refuses to concede defeat. And one thing is certain: the U.S. is losing control over the world’s mineral resources to China.

When it comes to critical minerals, the Chinese not only control most of the mines but also maintain and operate the majority of the world’s processing facilities. No other country comes close in the race for critical minerals. China finances the majority of critical mineral projects worldwide, totaling $57 billion over the past 20 years. It holds 35% of the globe’s reserves, but is responsible for 70% of their extraction and 87% of their processing on this planet.

In contrast, the U.S. relies entirely on China and other places for 12 of the 50 minerals on its “List of Critical Minerals” and is more than 50% dependent on imports for 28 more. Those minerals include metals like aluminum, cobalt, graphite, and lithium. And being “critical” doesn’t mean they are in short supply. For instance, believe it or not, the U.S. already has an excess supply of copper, which makes the proposed mine at Oak Flat all the more unnecessary and insidious. Adding to the absurdity, China’s Chinalco conglomerate holds almost 15% of Rio Tinto, so mining Oak Flat will, in the end, still benefit the Chinese.

While Biden’s Department of Energy allocated $19.5 million to increase domestic production of such minerals, $43 million to enhance battery technologies for EVs, and another $150 million to build processing facilities, that amount pales in comparison to China’s $230 billioninvestment in its EV market from 2009 to 2023 alone. Unsurprisingly, China now accounts for 62% of the world’s EVs and 77% of the batteries that power them. And it’s not just about the green tech. All those minerals shipped from China (80% of the U.S. supply) are also used as components for Artificial Intelligence and in the work of carmakers, aerospace companies, the defense industry, and others.

We know Trump doesn’t care about the climate or green energy policies, which he’s called a “scam.” Still, he understands that whoever commands those resources has the power to navigate the future of the global economy. Today, 30% of the world’s energy is produced by renewables (up 10% since 2010). Although fossil fuels still dominate, green energy is set to grow 90% by 2030. Nothing that Trump does can alter this trajectory — and now he evidently wants in.

On April 24th, the Department of the Interior, after being prodded by Trump, announced that it would eliminate environmental reviews and fast-track the development of oil, gas, and critical minerals on public lands.

“The United States cannot afford to wait,” Interior Secretary Doug Burgum said in a statement. “We are cutting through unnecessary delays to fast-track the development of American energy and critical minerals — resources that are essential to our economy, our military readiness, and our global competitiveness.”

Burgum was sounding the alarm, even if there was no real bell to ring. After all, the U.S. already has more fossil fuels than it knows what to do with. Weeks earlier, amid Trump’s escalating tariff war, China had retaliated by threatening to end shipments of critical minerals to the United States, all but flatlining Trump’s hopes of reinvigorating the American manufacturing sector.

There were, however, a couple of problems with Burgum’s edict (and Trump’s emergency energy decree that preceded it). First, it takes a significant amount of time to get a mine up and running (on average, 16 years), and it’s not always environmental reviews that are to blame. You need to find the resource, gather investors, and build out the necessary infrastructure, which may include roads and other facilities. None of this will happen quickly enough to offset China’s threat, even without environmental reviews. Second, although the U.S. does have a wealth of critical minerals in its backyard, it doesn’t maintain the processing facilities needed to handle them. Mining a bunch of new metals without refinement centers is an exercise in futility, akin to pumping millions of gallons of oil without the refineries to turn it all into gasoline.

Even so, this reality hasn’t stopped the over-eager Trump, who worked to cut a deal with Ukraine for access to its mineral wealth and has his sights set on nabbing Greenland’s as well. No doubt, Elon Musk, who has long criticized the U.S. for lagging behind China when it comes to mineral dominance, has been advising Trump to get a move on, even if it’s too late.

That MAGA Energy

What such critical mineral mining means for the future of the climate remains uncertain. Yet, as Trump has made clear, his insistence that the U.S. should open public lands for exploration isn’t about reducing carbon emissions at all. In fact, he’s hellbent on increasing them. It’s about bolstering U.S. capitalism, enriching mining companies, and, well, Making America (and undoubtedly Donald Trump) Great Again....

---

so much ignorance, hypocrisy hard to tell from just bad faith

https://www.alternet.org/weaponized-nonsense-lauren-boebert-climate/

no lnx twt vid

Lauren Boebert (R-Colorado) referred to climate change as a "religion" during a floor speech in the House of Representatives on Tuesday.

:{:{}:

"It's past timeHouse Democrats start to have a little empathy and dismount their moral high horse of climate change. There are thousands of children currently today slaving away in the Congo at Chinese-owned mines. They have to dig for cobalt with their bare hands. Instead of freeing these slaves and even ourselves from the need of these, this resource, they want to buy Chinese-made products," Boebert hollered."It's clear they have a climate religion. They worship the Earth while I worship the Creator, not the creation. We are here to be good stewards of our land. So stop sacrificing the American families at your altar of climate change."}:

Exploitative slave labor is a major problem in the industrial extraction of rare-earth minerals like cobalt, which is an essential material in a vast array of products such as electric cars, medical devices, and smartphones. As National Public Radio noted in February, "cobalt is used in the manufacture of almost all lithium-ion rechargeable batteries used in the world today."

READ MORE: Lauren Boebert declares war on Disney and immediately loses

NPR further pointed out that "the mines have taken over everything. Hundreds of thousands of people have been displaced because their villages were just bulldozed over to make place for large mining concessions." NPR added that "it's not chattel slavery from the 18th century where you can buy and trade people and own title over a person like property. But the level of degradation, the level of exploitation is on par with old-world slavery."

NPR added that Chinese companies "have about 70, 80% of the refined cobalt market and probably half of the battery market."

:{:{}:

Yet Boebert's own actions and record do not square with her proclamation. First, her Bible explicitly commands in numerous passages that humans be "good stewards" of the Earth.

Faith leaders have championed this idea too. Pope John Paul II once said that "the Earth will not continue to offer its harvest, except with faithful stewardship. We cannot say we love the land and then take steps to destroy it for use by future generations."}:

READ MORE: 'Such a pathetic hateful person': Lauren Boebert buried for tweeting unprovoked attack on immigrants

Second, Boebert opposes legislation and regulations aimed at protecting the environment, putting her at odds with science and reality. In 2021, Boebert filed a bill to nullify the Paris Climate Agreement, which President Joe Biden rejoined, prompting outrage from residents of her district.

"As the 'representative' of a district in which 59% of constituents are worried about global warming, 56% think Congress should do more to address global warming, and 72% think carbon dioxide should be regulated as a pollutant, Boebert’s sweeping, ill-informed bill is not only a rebuke to District 3 — which will suffer the impacts of a warming climate disproportionately — but an abrogation of fact itself," Darmouth student Soleil Gaylord wrote for Colorado Newsline that year.

Jacobin Magazine compared Boebert's anti-climate bill of running a "self-enrichment scheme" aimed at "benefiting her husband's fossil fuel business."

Last month, Boebert trivialized the climate crisis by tweeting, "Nothing against climate change. I totally believe in it. It happens four times every year."

Twitter users called out her hypocrisy after Tuesday's outburst.

LoveToHike: "Um aren't Christians supposed to be stewards of the Earth?"

Christian SoxKehd: "Then why is she fine as humanity is destroying the Creator's gift to us? If you hold him in the exalted reverence you claim, wouldn't you wish to preserve the gifted home He left for us."

Gayle Glade: "I don't care if her higher power is Jiminy Cricket or Buddha. That's private. What she is PAID to do is be a legislator. As such she needs to deal with facts, figures, science, and reality. Nothing more. She can preach on Sundays. Mon-Fri she's on constituent time!"

Ken: "If @laurenboebert worships the creator, then wouldn't she and other so-called 'Christians' do what it takes to protect what the creator created?"

KevinMc: "God spent 3 out of 7 days creating the Earth...1 day creating the rest of the universe...2 days creating sea creatures, animals and humans...and then God rested. God thought the Earth was the most important part of his creation...seems worth saving. 'True' story. Look it up."

Waffle Pocket: "Lauren Boebert coming out strong against the planet Earth."

Mo Ray: "Little Miss Cliché trots out her tired talking points to mock those of us who would rather not trash the planet, it's neither helpful nor accurate. Most scientists believe that climate change is real, it's not a religious movement, simply an attempt to prevent further damage."

Randy Watson: "The only creator she worships is Smith & Wesson."

Half Centaur: "Another in a long string of GOP 'weaponized nonsense.'"

Watch below or at this link.

READ MORE: 'Then why are you allowed to vote?' Lauren Boebert goes down in flames after new Constitution gaffe

FROM YOUR SITE ARTICLES

Lauren Boebert’s gun-obsessed restaurant is facing an 'uncertain future': report ›

'How confident your stupidity is': Lauren Boebert lampooned for posting crudely-cropped US map ›

Watch: House Republican told to 'search your heart' during contentious climate change hearing ›

D.C. Circuit Vacates Dodd-Frank Conflict Minerals Provision & SEC Rule as Violating First Amendment Free Speech

By Leland E. Beck on April 14th, 2014Posted in Agency Authority, Constitutional Issues in Regulations, Regulatory Process

The United States Court of Appeals for the District of Columbia today, in National Association of Manufacturers v. SEC, affirmed a district court judgment that the Securities and Exchange Commission (SEC) did not violate procedural requirements or misconstrue the statute in promulgating the Conflict Minerals Rule, but vacated the specific underlying statutory provision and the rule because the requirements compelled speech in violation of the First Amendment to the United States Constitution.

Compelling reporting, disclosure, and publication to the extent that entails “compelled speech” pose a distinct constitutional limitation on both statutes and rulemaking under statutes. Agencies must consider carefully this developing caselaw in formulating any reporting requirement that will be publicly disclosed – and provide a detailed justification for such requirements in the preamble of any such rule – or counsel for regulated parties will, and should, press judicial review.

Dodd-Frank Act: In the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act, Congress required the SEC to issue regulations requiring companies using “conflict minerals” – gold, tantalum, tin, and tungsten mined from the Democratic Republic of the Congo or an adjoining country – to investigate and disclose the origin of those minerals. The statutory scheme applies only to “person[s] described” in the Act – those if conflict minerals are necessary to the functionality or production of a product manufactured by the company. A covered company must disclose annually, whether the necessary conflict minerals originated in the DRC or an adjoining country. If so, the company must file a report with the SEC, describing the due diligence measures taken to establish the source and chain of custody of the minerals, including a private sector audit of the report. The report must also list the products manufactured or contracted to be manufactured that are not “DRC conflict free.” A product is “DRC conflict free” if it’s necessary conflict minerals did not “directly or indirectly finance or benefit armed groups” in the covered countries.

Conflict Minerals Rule: The SEC promulgated a final rule that requires multiple steps by a company that can be counted several ways:

A company must determine if it is covered by the rule: i.e. (a) they file certain reports with the SEC (“issuers” in securities law), and (b) the conflict minerals are necessary to the production or functionality of their products, whether directly or through contracted manufacturers, and in no minimum amount.
The company must conduct a “reasonable country of origin inquiry” – a preliminary investigation designed to determine whether the company’s necessary conflict minerals originated in covered countries.
If that inquiry results in the company knowing or acquiring a “reason to believe” that its necessary conflict minerals “may have originated” in a covered country, the company must “exercise due diligence on the source and chain of custody of its conflict minerals.”
If, after performing its due diligence, the company still has reason to believe its conflict minerals may have originated in covered countries, it must file a report with the SEC describing its due diligence, a private sector audit of its efforts, and those products that have “not been found to be ‘DRC conflict free.’” The report must also provide detailed information about the origin of the minerals used in those products.

The SEC estimated that the total initial costs of the final rule would be $3 – $4 billion, and $207 – $609 million each year thereafter. The SEC was “unable to readily quantify” the “compelling social benefits” the rule was supposed to achieve in reducing violence and promoting peace and stability in the Congo. The SEC, in making choices in the final rule, relied on Congress’s judgment that supply-chain transparency would have those benefits by reducing the flow of money to destabilizing armed factions.

Statutory and Regulatory Rejection: The D.C. Circuit panel (unanimously) rejected statutory interpretation and Administrative Procedure Act (APA) process challenges to the SEC’s rule:

The SEC was not arbitrary and capricious in rejecting a de minimis exception because a de minimis exception would be contrary to the general purpose of the statute, as an exercise of discretion, not because the statute plainly did not provide for such an exception.
The SEC was within its discretion in interpreting the statutory requirements relating to whether a conflict mineral “did originate” or “may have originated” in the Congo.
The SEC did not abuse its discretion in requiring a company to report on “contracted manufacturers” and rejected a structured statutory interpretation based on the inclusion and exclusion of the phrase “contracted to be manufactured” in different provisions – i.e. a rejection of a wooden application of the expressio unius est exclusio alterius canon of statutory interpretation in Congressional delegations of agency rulemaking authority.

The court also rejected the appellants’ argument that the economics of the rule violated the SEC’s underlying statutory obligations (a contention of merit in a number of cases over the past decade), finding that under the circumstances, the measurements and analysis were reasonable. Pointing out that Congress decided the premise that reporting and disclosure would benefit the peace and harmony of the Congo (which the SEC relied upon), the court opined that:

An agency is not required “to measure the immeasurable,” and need not conduct a “rigorous, quantitative economic analysis” unless the statute explicitly directs it to do so. …. Here, the rule’s benefits would occur half-a-world away in the midst of an opaque conflict about which little reliable information exists, and concern a subject about which the Commission has no particular expertise. Even if one could estimate how many lives are saved or rapes prevented as a direct result of the final rule, doing so would be pointless because the costs of the rule – measured in dollars – would create an apples-to-bricks comparison.

The analysis warrants reading, but is not the true linchpin on which this decision hinges. The regulatory and statutory decisions are necessary preludes to reaching a constitutional issue.

First Amendment Compelled Speech: In another example of the growing complexity of the issue, the majority of the court of appeals panel vacated the rule at a higher plane – the First Amendment to the United States Constitution. Appellants argued that the requirement that a company describe its products as not “DRC conflict free” in the report it files with the SEC and posting that report on its website unconstitutionally compels speech. Here, again, the court is faced with categorizing speech under the First Amendment:

factual statements under rational basis to avoid consumer deception (or perhaps misrepresentation or fraud) under Zauderer, as contrasted with
intermediate scrutiny of commercial speech under Central Hudson’s requirement that the government show a substantial government interest that is directly and materially advanced by the restriction; and the restriction is narrowly tailored (and as to this last the SEC provided no evidence), or
strict scrutiny of any other compelled speech, particularly compelled speech with some ideological value.

The court gently, but clearly, interpreted the statement being compelled:

At all events, it is far from clear that the description at issue – whether a product is “conflict free” – is factual and non-ideological. Products and minerals do not fight conflicts. The label “conflict free” is a metaphor that conveys moral responsibility for the Congo war. It requires an issuer to tell consumers that its products are ethically tainted, even if they only indirectly finance armed groups. An issuer, including an issuer who condemns the atrocities of the Congo war in the strongest terms, may disagree with that assessment of its moral responsibility. And it may convey that “message” through “silence.” …. By compelling an issuer to confess blood on its hands, the statute interferes with that exercise of the freedom of speech under the First Amendment.

For that reason, the court struck down both the specific underlying Dodd-Frank provision and the SEC’s final rule “to the extent the statute and rule require regulated entities to report to the Commission and to state on their website that any of their products have “not been found to be ‘DRC conflict free.’””

Dissent & Another Consideration of the Problem: If this linchpin does not sound vaguely familiar, the dissent provides the answer. Judge Srinivasan, noting that the court of appeals had already ordered argument en banc rehearing of American Meat Institute v. Department of Agriculture, at that panel’s suggestion, and of which he was a member, suggests that the better course was to sever the administrative law and statutory issues and decide them as the panel did, but to hold the issues on the ultimate First Amendment claim in abeyance pending resolution of the en banc case. That separate procedural issue, freighted with the court’s own stare decisis (Lat: “to stand by things decided”) and interlocking panels, may well lead to en banc consideration of this case as well – at the behest of a judge of the court or upon motion of a party. Perhaps a stay of the statute (and dependent stay of the rule) is appropriate, and further orders may yet issue.

http://thinkprogress.org/world/2016/05/28/3782221/democratic-republic-congo-mining-deals/

In the Democratic Republic of Congo (DRC), the vast majority of people live in extreme poverty, earning only around $400 a year. The country is reeling from instability, hunger, and disease. One in seven children dies before they turn 5 years old. And more than 5.4 million people have died since 1993 because of armed conflict. But the issues plaguing Congolese citizens are in sharp contrast to the country’s wealth. The DRC sits on untapped, raw mineral ores worth $24 trillion — money that isn’t directly benefiting the people who live there.

http://whowhatwhy.org/2015/08/26/scotuss-bloody-joke-benefits-corporations-while-others-suffer/

When Mitt Romney declared that ” at the Iowa State Fair four years ago, there were quite a few chuckles in the crowd. However, as a new courtdecision has shown, it is no laughing matter that federal courts are increasingly holding the same view.

The latest win for Big Business came in a case against the Securities and Exchange Commission (SEC). The SEC had mandated that companies disclose whether their products were free of “conflict minerals.”

Because the trade in these minerals helps fund the bloody conflict in the Democratic Republic of Congo (DRC), and as a result contributes to the massive humanitarian crisis there, the purpose of the rule was to cut off that avenue of funding. But the United States Court of Appeals for the District of Columbia Circuit ruled in favor of the National Association of Manufacturers in the case and reaffirmed its view that a business could not be compelled to “confess blood on its hands” because doing so would violate its freedom of speech.

“The Supreme Court has been expanding the concept of corporate constitutional rights for decades, culminating in the disastrous 2010 Citizens United decision,” said Ron Fein, the Legal Director of Free Speech for People, who filed an amicus brief in the case.

Fein noted that the SEC rule merely required a company to disclose whether it could certify that its products did not include conflict minerals and that it gave businesses a lot of leeway in how to include this information.

But even that was not good enough for the court, which ruled that it was unclear what benefit the rule would have and that this type of information fell under the companies’ First Amendment protection.

There are, of course, plenty of instances in which actual persons have to disclose information that is not beneficial to them. For example, sex offenders have to register and in many situations in everyday life, felons have to reveal that they went to prison.

Judge Sri Srinivasan noted in the dissenting opinion that companies “must make all sorts of disclosures about their products for the benefit of the investing public.”

“No one thinks that garden-variety disclosure obligations of that ilk raise a significant First Amendment problem,” he added.

Therefore, Srinivasan argued, there should be no objection to requiring companies to disclose whether a product contained conflict minerals, proceeds of which help fund the conflict in and near the DRC.

“Such a requirement provides investors and consumers with useful information about the geographic origins of a product’s source materials,” Srinivasan wrote.

Last week’s decision could end up backfiring, Fein told WhoWhatWhy.

“If the courts strike down disclosure laws as violating freedom of speech, there could be an unintended consequence for these businesses that governments use more heavy-handed approaches to regulation, which would be ironic,” Fein said.

For now, however, only Big Business is laughing. The decision could also conceivably result in issues being reopened in the future that are now considered to be settled. Tobacco companies, for example, which have already successfully fought having to include graphic images on cigarette packs, could use the ruling to argue that they no longer should be required to print any kind of health warning on their products.

With a spate of recent decisions expanding the notion of “corporate personhood” – like this one or those in the Citizens United and Hobby Lobby cases – it remains to be seen if the judiciary is going to play other jokes on real persons.

Since 1998, more than 5 million people have died in the Democratic Republic of Congo in what has been described as the deadliest documented conflict in African history. Much of the fighting has been over precious minerals including tantalum, tin, tungsten and gold. Tantalum has become a precious commodity in the digital age — it’s found in cellphones, DVD players, laptops and hard drives. Human rights groups have long pushed for mandatory labeling of so-called "conflict minerals" in order to allow consumers and investors to avoid fueling the bloody conflict through the purchase of their products. The mandatory disclosure policy became law as part of the 2010 Dodd-Frank Wall Street Reform Act. But this week a federal appeals court ruled the Securities and Exchange Commission cannot force companies to disclose whether minerals come from the Democratic Republic of Congo because the mandatory labeling would violate the companies’ freedom of speech.

:{:{}:

http://www.democracynow.org/2015/8/21/in_victory_for_corporations_court_rejects

ron:

What do blood gold, cigarette warning labels, and employee “know your rights” posters have in common? The answer lies in a series of recent court decisions that suggest that some judges don’t see a difference between a Jehovah’s Witness and a multinational corporation.

:{:{}:

It all begins with the First Amendment to our Constitution, which guarantees our freedom of speech — including our right not to speak. That’s why the Supreme Court has ruled that Jehovah’s Witnesses can’t be forced to recite the Pledge of Allegiance, or to put New Hampshire license plates that say “Live Free or Die” on their cars. As Justice Jackson wrote in the pledge case, “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

:{:{}:

But in recent years, courts have taken the absurd step of comparing big businesses to Jehovah’s Witnesses. In just three years, a federal court of appeals in Washington, D.C. has issued three decisions striking down common-sense business regulations as violating corporations’ supposedly sacred right to freedom of speech.

:{:{}:

In 2012, the court struck down new federally-required warning labels on cigarette packages— it said the labels violated the tobacco companies’ First Amendment right not to speak. And in 2013, it threw out a rule that required employers to post an 11-by-17 employee breakroom “know your rights” poster.

:{:{}:

That brings us to blood gold. In some war-torn parts of Africa, armed warlords control the mining and trading of minerals such as gold and tungsten, and the trade in these minerals fuels an ongoing humanitarian catastrophe. Congress came together and passed a law in 2010 to do something about these “conflict minerals.”

:{:{}:

The law — which was applauded by churches and humanitarian groups — didn’t ban importing or using conflict minerals. Instead, it ordered the Securities and Exchange Commission, which polices publicly-traded corporations, to make those companies report whether their products contained or used minerals that could be traced back to armed groups. That disclosure would help investors and customers understand which companies trade in conflict minerals.

:{:{}:

But the National Association of Manufacturers challenged the law as violating its First Amendment right not to speak. The court agreed; it said that Congress couldn’t require these companies to disclose whether their products were “conflict free” because that would be like compelling a company “to confess blood on its hands.”

:{:{}:

Mega-corporations don’t have a First Amendment right not to file reports with the government. These companies get huge value from trading in America’s stock markets, which are still the envy of the world for their transparency and rule of law. These companies already have enormous influence in Congress. But in this rare case where they didn’t get their way, they managed to convince a court to throw out the law.

:{:{}:

Courts play an important role in protecting our individual freedoms. And when courts intervene to protect the freedom of speech of lonely dissenters or unpopular groups, we recognize the importance of protecting that freedom. But manufacturing companies aren’t Jehovah’s Witnesses, and the courts should know the difference. Thanks to the court, it’s harder for us to know which companies are trading in blood gold, and Congress’s compromise approach to reducing the blood gold trade may be hobbled. And that means that real people, both in Africa and right here in America, will suffer. Because when corporations rush to court crying about their First Amendment rights, real people pay the price.

:{:{}:

Ron Fein is the Legal Director of Free Speech For People.

:{:{}:

Article printed from The Daily Caller: http://dailycaller.com

:{:{}:

URL to article: http://dailycaller.com/2014/05/19/blood-gold-and-free-speech/

fein FS4ppl:

National Association of Manufacturers et al. v. U.S. Securities Exchange Commission

We’re pleased to join Global Witness Limited in an important brief pushing back against a First Amendment claim by the National Association of Manufacturers and other corporate interests. The companies challenge a federal law requiring publicly-traded corporations to disclose whether their products use “conflict minerals” from the war-torn Democratic Republic of the Congo. This would help investors and customers understand which companies trade in conflict minerals that may benefit armed warlords. But the companies claim that this disclosure forces them to “speak” against their will. Our joint brief argues that these factual disclosures do not violate the First Amendment.

Free Speech For People Joins Global Witness in Brief in *National Association of Manufacturers et al. v. U.S. Securities Exchange Commision*

Another significant shift in the law since Powell’s memo was circulated has been the gradual expansion of corporate constitutional rights (referred to by some business groups as “business civil liberties”), especially in the realms of commercial and political speech. The most infamous example is the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission. In the commercial sphere, companies have similarly used corporate speech doctrines to challenge various restrictions on corporate advertising (e.g. direct-to-consumer advertising of prescription drugs for off-label uses), limits on media ownership, and product safety labeling requirements (e.g. cigarettes and genetically modified foods).

Corporate constitutional rights are regularly claimed (with the implicit threat of litigation) in opposition to new or proposed regulations. One recent example came during recent attacks on regulations created by the Dodd-Frank financial reform package, which contained a provision requiring that companies report their use of tin, gold and other minerals that can be traced back to the conflict-ridden Democratic Republic of the Congo. In its comments to the SEC, Tiffany & Co. claimed the SEC rules would “compel speech in a manner that violates theFirst Amendment.”

===

how magna carta became minor:

THE CHARTER OF THE FOREST IMPOSED LIMITS TO PRIVATIZATION. THE ROBIN HOOD MYTHS CAPTURE THE ESSENCE OF ITS CONCERNS (AND IT IS NOT TOO SURPRISING THAT THE POPULAR TV SERIES OF THE 1950S, “THE ADVENTURES OF ROBIN HOOD,” WAS WRITTEN ANONYMOUSLY BY HOLLYWOOD SCREENWRITERS BLACKLISTED FOR LEFTIST CONVICTIONS). BY THE SEVENTEENTH CENTURY, HOWEVER, THIS CHARTER HAD FALLEN VICTIM TO THE RISE OF THE COMMODITY ECONOMY AND CAPITALIST PRACTICE AND MORALITY.

WITH THE COMMONS NO LONGER PROTECTED FOR COOPERATIVE NURTURING AND USE, THE RIGHTS OF THE COMMON PEOPLE WERE RESTRICTED TO WHAT COULD NOT BE PRIVATIZED, A CATEGORY THAT CONTINUES TO SHRINK TO VIRTUAL INVISIBILITY. IN BOLIVIA, THE ATTEMPT TO PRIVATIZE WATER WAS, IN THE END, BEATEN BACK BY AN UPRISING THAT BROUGHT THE INDIGENOUS MAJORITY TO POWER FOR THE FIRST TIME IN HISTORY. THE WORLD BANK HAS JUST RULED THAT THE MINING MULTINATIONAL PACIFIC RIM CAN PROCEED WITH A CASE AGAINST EL SALVADOR FOR TRYING TO PRESERVE LANDS AND COMMUNITIES FROM HIGHLY DESTRUCTIVE GOLD MINING. ENVIRONMENTAL CONSTRAINTS THREATEN TO DEPRIVE THE COMPANY OF FUTURE PROFITS, A CRIME THAT CAN BE PUNISHED UNDER THE RULES OF THE INVESTOR-RIGHTS REGIME MISLABELED AS “FREE TRADE.” AND THIS IS ONLY A TINY SAMPLE OF STRUGGLES UNDERWAY OVER MUCH OF THE WORLD, SOME INVOLVING EXTREME VIOLENCE, AS IN THE EASTERN CONGO, WHERE MILLIONS HAVE BEEN KILLED IN RECENT YEARS TO ENSURE AN AMPLE SUPPLY OF MINERALS FOR CELL PHONES AND OTHER USES, AND OF COURSE AMPLE PROFITS

bs adler

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/04/15/d-c-circuit-finds-secs-conflict-mineral-disclosure-rule-violates-first-amendment/

The D0dd-Frank Wall Street Reform and Consumer Protection Act instructs the Securities and Exchange Commission to issue regulations requiring companies to disclose whether they obtained various rare minerals from war-torn regions in central Africa. On Monday, a divided panel of the U.S. Court of Appeals for the D.C. Circuit held that the SEC’s “conflict mineral” disclosure rules were unconstitutional. Specifically, in National Association of Manufacturers v. Securities and ExchangeCommission, the court found that requiring companies to declare whether their products are “DRC conflict free,” the regulations unconstitutionally compelled commercial speech, thus violating the First Amendment.

In an opinion by Judge Raymond Randolph (joined by Judge David Sentelle), the court concluded that compelled disclosures of commercial information are subject to the same level of First Amendment scrutiny as are other regulations of commercial speech (under the Central Hudsontest), unless the disclosures are limited to “purely factual and uncontroversial information” and the mandatory disclosure is “reasonably related to the State’s interest in preventing deception of consumers.”

Because, as the SEC conceded, the conflict mineral disclosure requirements have nothing to do with preventing consumer deception, the court concluded the rules should be evaluated under Central Hudson. Under this test, the requirements must serve a substantial government interest, directly advance that interest, and be narrowly tailored. Whether or not the SEC could demonstrate that its conflict mineral disclosure rule satisfies a substantial government interest, the court found the SEC offered no evidence that its rule was narrowly tailored. On this basis the court struck down the requirement that companies declare that products “have not been found to be ‘DRC conflict free.’” Insofar as Dodd-Frank requires other disclosures, including reports to the SEC, such requirements were upheld.

[The court also noted that the SEC conceded it was 'unable to readily quantify" any "compelling social benefits" from a rule estimated to cost up to $4 billion to implement initially, and between $207 million and $609 million annually thereafter. To my mind, this suggests the rule does not directly advance the government's interests either, but the court did not rest its holding on this ground.]

The NAMdecision comes on the heels of another significant compelled commercial speech decision: American Meat Institute v. USDA. As I discussed here, on March 28 a separate panel of the D.C. Circuit upheld the Agriculture Department’s country-of-origin-labeling regulations against a similar First Amendment challenge, concluding that regulations requiring disclosure of non-controversial, factual information need only satisfy rational basis scrutiny, even if the disclosure is not intended to prevent potential consumer deception. One week later, however, the full court voted to rehear the AMIcase en banc to reconsider the basis for its decision.

As I discussed in my prior post, the AMI panel erred in concluding that compelled factual disclosures should always receive a lesser degree of scrutiny. Judge Sri Srinivasan, who was also on the AMI panel, dissented-in-part from the conflicts mineral disclosure decision, arguing that the panel should have stayed its hand on the constitutional question until AMIis decided en banc. Randolph responded that deciding the question now was consistent with court practice and “provides an opportunity for the parties to participate in the court’s en banc consideration of this important First Amendment question.”

As the conflicts minerals case shows, forcing the disclosure of facts about goods or services is rarely a value-neutral act. There are always a near-infinite number of facts about a good or service that may be of interest to consumers, and yet there is only limited space to communicate such information. Label space is limited, as is the attention span of consumers. There can be too little information about a product, but also too much. When the government mandates the disclosure of specific information it is declaring that such information is more important — and is entitled to greater consideration — than other potentially relevant information about the good or service. So, for instance, when the government mandates conflict mineral disclosure, it is suggesting that consumers should care more about this than, say, the sustainability of the products, the source of labor used, the company’s environmental record or charitable giving, and so on. This is not a neutral act, and thus should be subject to constitutional scrutiny.

Requiring government disclosure requirements to meet the standard commercial speech test of Central Hudson does not threaten most disclosure requirements. Under Central Hudson, the government must identify a substantial governmental interest in order to regulate commercial speech. Disclosure or labeling requirements that serve to prevent consumer deception or prevent unwitting harms easily meet this requirement. Indeed, Central Hudsonmakes clear that commercial speech is only protected if it concerns lawful activity and is non-deceptive. So understood, most SEC financial disclosure rules, FDA and USDA food labeling requirements, consumer safety warnings, and the like are likely constitutional. The sorts of disclosure requirements put at risk by such a rule are only those, like conflicts mineral disclosure, that seek to force producers or retailers to stigmatize products so as to discourage consumers from buying them. If the government wants to influence consumer behavior in this way, it can do so with its own speech — such as through advertising campaigns and consumer education.

Private groups may also encourage disclosures and producers remain free to voluntarily disclose information — such as whether a product is “organic,” “cruelty-free” or even “DRC conflict free” — that may make their products more appealing than those of their competitors. What the First Amendment should limit, however, is the government’s ability to commandeer private speech to support such a cause.

For more on the NAM decision, see these three posts on ProfessorBainbridge.com.

PERC, FREE etc etc Nat'l Jrnl: Jonathan H. Adler teaches courses in constitutional, administrative, and environmental law at the Case Western University KOCHsucker School of Law, where he is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation.

---

oct. 22 (Bloomberg) -- The U.S. Chamber of Commerce and National Association of Manufacturers asked a federal court to modify or scrap U.S. Securities and Exchange Commission rules governing so-called conflict minerals.

The SEC adopted a regulation in August that requires companies using gold, tin, tungsten and tantalum in their products to make “reasonable” efforts to determine if those materials came from the Democratic Republic of Congo or an adjoining country. Business groups have complained the measure is burdensome, costly to administer and ineffective.

Trade in those minerals -- used in electronic devices -- is helping to finance conflict and contributing to a humanitarian crisis in the central African nation, according to the SEC.

“Petitioners request that this rule be modified or set aside in whole or in part,” the two Washington-based business advocacy groups said in a joint filing with the U.S. Court of Appeals in Washington on Oct. 19.

The measure was mandated by the 2010 Dodd-Frank Wall Street Reform and Consumer Protection Act. It applies to companies with SEC-reporting obligations for whom the minerals are “necessary to the functionality or production” of an item they manufacture, the agency said in an Aug. 22 statement announcing the rule’s adoption.

It applies to Apple Inc., Boeing Co. and thousands of other U.S-listed manufacturers whose products incorporate the metals.

The first disclosure reports are due by May 31, 2014, the agency said.

“While the petitioners did not state a basis for a challenge in their filing, we believe our legal interpretation and economic analysis are sound and we look forward to defending the rule that Congress directed us to write,” John Nester, a spokesman for the SEC, said in a statement.

‘Complex Issue’

In a joint statement, the groups that though the measure was well-intentioned, it “is not an effective approach to this complex issue.”

“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.”

The case is National Association of Manufacturers v. U.S. Securities and Exchange Commission, 12-1422, U.S. Court of Appeals for the District of Columbia Circuit (Washington).

To contact the reporter on this story: Andrew Harris in Chicago ataharris16@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

---

15 APRIL 2014

Legal News: Public Policy

D.C. Circuit Partially Strikes Down SEC Conflict Minerals Rules

On April 14, 2014, the U.S. Court of Appeals for the D.C. Circuit issued its long-awaited decision in the challenge to the SEC’s conflict minerals disclosure rule filed by the National Association of Manufacturers (“NAM”) and other industry groups, giving the challengers a partial victory on First Amendment grounds. NAM had challenged several aspects of the SEC’s rules as violating the Administrative Procedure Act (“APA”), the Exchange Act, and the First Amendment.The Court rejected the APA and Exchange Act challenges to the rules, but by a 2-1 margin found that certain aspects of the SEC’s rules violate the First Amendment by compelling issuers to engage in stigmatizing commercial speech about their own products. Whether that partial victory will result in meaningful changes to the SEC’s conflict minerals reporting regime remains to be determined, as the Court’s First Amendment ruling focused on the rule’s requirement that issuers use the particular descriptor “not found to be ‘DRC conflict free’” in describing their own products, leading to potential debate as to whether the constitutional issues with the rule are limited to those particular “magic words,” or whether the public reporting aspect of the rule requires a broader reconsideration and adjustment. This Legal News Alert provides a brief summary of the Court’s decision, as well as preliminary thoughts on how this might impact conflict minerals compliance issues for issuers and companies in their supply chains.

Court Rejects APA and Exchange Act Challenges

NAM had argued that several aspects of the conflict minerals rules exceeded the SEC’s rulemaking authority, contradicted the underlying statutory provisions on which they were based, or were otherwise arbitrary and capricious. Specifically, NAM challenged: (1) the SEC’s decision not to adopt a de minimis exception to the rule; (2) the SEC’s substitution of the broader “may have originated in the conflict region” trigger for due diligence/reporting obligations in the place of the narrower “did originate” language in the underlying statute; (3) the SEC’s expansion of conflict minerals due diligence and reporting obligations beyond just “manufacturers” to reach retail issuers who sell products that they “contracted to be manufactured”; and (4) the SEC’s adoption of a shorter phase-in period for large issuers (two years) than for small issuers (four years). The Court rejected all four of these challenges, finding that the SEC had reasonably exercised its broad rule-making discretion and its delegated authority to interpret and fill in the gaps in ambiguous statutory language.

NAM had also argued that the SEC violated the provisions of the Exchange Act by failing to perform an adequate cost-benefit analysis of its final rule. Specifically, NAM challenged the SEC’s acknowledged inability to quantify the social benefits of the rule or to determine whether the final rule would actually achieve its intended purpose of promoting peace and stability in the Congo. The Court rejected that argument, noting that the benefits of saving lives or preventing rapes in the Congo region cannot logically be weighed against the economic costs (measured in dollars) of the reporting requirements. The Court further found that, in passing Section 1502 of Dodd-Frank, Congress had already concluded that transparency and disclosure regarding the sourcing of conflict minerals would benefit the Congo, and the SEC could not have second-guessed Congress on that judgment and still fulfilled its obligation under the statute to adopt a conflict minerals disclosure rule.

First Amendment Issue: Compelled Speech

Two members of the three-judge panel found that the requirement that issuers report to the SEC and to state on their websites that any of their products have “not been found to be ‘DRC conflict free’” constitutes government-compelled commercial speech in violation of the First Amendment. The majority concluded that such compelled commercial speech is subject to heightened scrutiny when the disclosure at issue is not related to the government’s interest in preventing deception of consumers, an interest that the majority found was not implicated by the conflict minerals rule. The majority also remarked upon the stigmatizing impact of the description at issue, observing that describing a product as “not found to be conflict-free” is “a metaphor that conveys moral responsibility for the Congo war,” and conveys to consumers that an issuer’s products “are ethically tainted.” The SEC could not justify this interference with issuers’ free speech rights, the majority concluded, because the governmental objectives underlying the rules could be accomplished through less intrusive means – such as by having the SEC itself, not each respective issuer, describe products as “not conflict-free” based on the information reported in the issuers’ conflict minerals reports.

What the Decision Means for Issuers and Their Suppliers

By striking down one aspect of the SEC’s conflict minerals reporting requirements, the Court’s decision will unquestionably impact the initial conflict minerals disclosures issuers would otherwise be due to file by June 2, 2014 – but precisely what that impact will be is yet to be determined, as the SEC is no doubt reviewing the decision and evaluating its next steps. One option for the SEC would be to suspend the initial reporting obligation, pending a revision of the conflict minerals rules to remove the “speech” requirement that the panel majority found objectionable. Even if the SEC does not voluntarily suspend the upcoming obligation to file conflict minerals reports, NAM is likely to request that the D.C. Circuit order the SEC to stay enforcement of the conflict minerals reporting obligation pending the SEC’s revision of the rules to comply with the Court’s ruling. Whether companies would be required to file a conflict minerals report in the coming weeks could well turn on how broadly the SEC interprets the constitutional deficiencies in its rules. If the SEC reads the D.C. Circuit decision narrowly, it may conclude that the rules can be remedied simply by removing the obligation for issuers to use the words “not DRC conflict-free” in their reports, which may allow the SEC to maintain the current June 2, 2014 deadline for companies to file their initial conflict minerals reports. (Few issuers were likely to use that “not DRC conflict-free” descriptor in their initial conflict minerals reports anyway, as most issuers would presumably use the “conflict undeterminable” designation available to companies during the rule’s phase-in period.)

From a longer-term perspective, the Court’s decision largely validates the SEC’s ability to require companies to perform due diligence on, and provide factual information about, the sourcing of conflict minerals in the products they manufacture or contract to have manufactured. Thus, the decision will likely have little impact on the “nuts-and-bolts” of conflict minerals reporting for most issuers and their suppliers, as the First Amendment objections to the current rules center on the requirement that companies self-identify their products as “not found to be ‘DRC conflict free.’” The Court did not prohibit the SEC from taking the factual information provided in issuers’ conflict minerals reports and using that information to issue its own determination that companies’ products are “not DRC conflict-free.” In fact, the Court practically invited such a result, noting that “if issuers can determine the conflict status of their products from due diligence, then surely the Commission can use the same information to make the same determination.” The SEC may be unwilling to perform such a role, however, given the amount of resources that would be required to review the conflict minerals reports of all issuers and make such determinations – particularly when such supply chain considerations are outside the SEC’s traditional areas of expertise.

The extent to which the D.C. Circuit ruling will lead to substantive changes in issuers’ reporting obligations depends in large measure on how broadly the SEC interprets the First Amendment problems with the current rule. If the SEC interprets the D.C. Circuit decision as rendering the entire public reporting aspect of the existing rule constitutionally suspect, the SEC would need to fundamentally restructure the conflict minerals rules, which would require another round of notice and comment rulemaking. If the SEC interprets the D.C. Circuit decision more narrowly, as implicating only the “scarlet letter” aspect of requiring companies to self-identify as “not DRC conflict-free” in their conflict minerals reports, the SEC could seek to retain the existing due diligence and reporting framework, and merely remove the requirement that issuers expressly describe themselves or their products in their conflict minerals reports as “not DRC conflict-free.” Such a result would permit companies that meet the existing standards for identifying themselves or their products as “DRC conflict-free” to continue to tout their “conflict-free” status in their conflict minerals reports. Conversely, issuers unable to meet the “conflict-free” standards would not have to publicly declare themselves “not conflict-free,” but their “not conflict-free” status would be implicit (though unstated), based on their inability to describe themselves as “conflict-free.” This revised regime would be analogous to how the government regulates certain claims in food labeling: the government establishes the standards a product must meet before it can label (and market) itself as “organic,” but does not require products falling short of those standards to stigmatize themselves as “non-organic.”

Even if the D.C. Circuit’s ruling does not trigger a wholesale reexamination and restructuring of the conflict minerals reporting regime in the SEC’s existing rules, the D.C. Circuit’s decision will likely either: (a) shift from issuers to the government the responsibility for identifying an issuer or its products as “not DRC conflict-free,” or (b) make that designation implicit, rather than explicit, in an issuer’s conflict minerals report. However, by leaving intact the SEC’s existing policy choices with respect to companies’ duties to investigate the sourcing of conflict minerals in their supply chains, the D.C. Circuit’s ruling is unlikely to lead to a significant reduction in the due diligence and fact-gathering obligations imposed on issuers and their suppliers.

We will continue to monitor the SEC’s reaction to the D.C. Circuit’s ruling and will provide additional guidance as the SEC takes steps to address the decision.

---

Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information about pressing concerns or industry issues affecting our clients and colleagues. If you have any questions about this Alert or would like to discuss the topic further, please contact your Foley attorney or the following: