On November 18, the United States Court of Appeals for the District of Columbia agreed to reconsider the last ruling in the on-going dispute of Section 1502 of Dodd-Frank and the implementation of the SEC's conflict minerals rule (the “Rule”) (discussed here , here, and here). The full court granted a request for re-hearing made by the SEC and Amnesty International, which intervened on the side of the agency. Specifically, the re-hearing request argued that re-consideration was necessary in light of the ruling in en banc decision in American Meat Institute v. USDA, 2014 BL 208501 (29 CCW 252, 8/13/14), because that case “expressly overruled a portion of the panel's First Amendment opinion in this case.” Accordingly, “American Meat makes clear that panel or en banc reconsideration of the panel opinion is necessary."
Not surprisingly, the groups challenging the Rule, including the National Association of Manufacturers, the United States Chamber of Commerce and the Business Roundtable, said the American Meat Institute ruling should not change the outcome of the conflict minerals decision.
- “Indeed, the en banc court specifically distinguished purely factual and uncontroversial disclosures, which may be permissible, from unconstitutional compelled speech about controversial matters, which is precisely what the Conflict Minerals Rule requires,” the statement said. “The Conflict Minerals Rule remains costly, counterproductive, and unconstitutional, and we will continue to oppose it in the courts, the SEC, and in Congress.”
And so the fight goes on. The per curiam order of the Circuit Court directs the parties to file supplemental briefs addressing the following specific questions related to the First Amendment issue:
(1) What effect, if any, does this court’s ruling in American Meat Institute v. U.S. Department of Agriculture, 760 F.3d 18 (D.C. Cir. 2014) (en banc), have on the First Amendment issue in this case regarding the conflict mineral disclosure requirement?
(2) What is the meaning of “purely factual and uncontroversial information” as used in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985), and American Meat Institute v. U.S. Department of Agriculture, 760 F.3d 18 (D.C. Cir. 2014) (en banc)?
(3) Is determination of what is “uncontroversial information” a question of fact?
No date has been set yet for the rehearing at the appeals court.