On SEC specialized disclosure rules, court rejects one, upholds another

The DC Circuit examined whether companies needed to publicly disclose payments to foreign governments or use of conflict minerals.

In separate July rulings, the U.S. District Court for the District of Columbia spoke to challenges over two rules the Securities and Exchange Commission (SEC) promulgated under specialized disclosure provisions in the Dodd-Frank Wall Street Reform and Consumer Protection Act, vacating one rule and upholding the other.

On July 2, U.S. District Judge John Bates granted a motion for summary judgment by industry groups that had challenged the SEC rule requiring certain companies to publicly disclose payments they make to foreign governments in connection with the commercial development of oil, natural gas or minerals.

Bates assessed the rule’s validity under the two-step framework established in the 1984 Supreme Court case Chevron USA Inc. v. Natural Res. Def. Council, Inc. First, the analysis calls for the court to ask whether Congress has directly spoken to the precise question at issue and, if so, whether the rule gives effect to the unambiguously expressed intent of Congress. If the statute is silent or ambiguous as to the specific issue, the court must defer to the agency’s interpretation as long as it is based on a permissible construction of the statute.

Bates found that the commission had made two substantial errors in drafting the resource extraction rule.

First, he took issue with the public nature of the disclosures. Under the SEC rule, the information would be made publicly available online “to the extent practicable.” During the rulemaking process, the SEC rejected the suggestion of some commentators that extractors should be able to submit the payment information confidentially to the SEC.

“Given the annual report provision’s silence as to public disclosure … the Commission’s argument that the statute unambiguously requires public filing is a climb up a very steep hill,” Bates wrote.

Double Fault

In short, Bates found that the SEC had misread the statute, which he said did not provide for public filing. Further, the statute had a specific subsection expressly addressing “public availability of information,” suggesting that where Congress wished to provide for public disclosure it did so explicitly. 

That alone was enough to condemn the rule, but Bates found that the SEC had made another serious error that invalidated the rule. During the rulemaking process, commentators had noted that the SEC rule conflicted with laws in Angola, Cameroon, China and Qatar that prohibit disclosure of such payment information and said the requirement might force them to withdraw from those countries, leading to billions in losses. The SEC refused to allow exemptions in light of such conflicts “no matter the cost” and in doing so “abdicated its statutory responsibility to investors,” Bates said, deeming the decision arbitrary and capricious.

In light of those two errors, the court vacated the rule and remanded it to the SEC.

The SEC now must either rewrite the rule or amend it in light of the D.C. court’s order. The question of whether the filings are public isn’t as important as what information needs to be in them, says Amy Greer, co-leader of the securities litigation and enforcement practice at Reed Smith.

“The hardest part of this is the whole issue of exemptions,” Greer says. “One wonders whether disclosures couldn’t be a little more general, regional perhaps … and still make the point that a lot of money is going to these countries and the people who live there are very poor. Because that’s the whole point of this.”

Humanitarian Factors

The district court also took on a challenge to the SEC’s conflict mineral rule, which requires issuers to publicly disclose any use of conflict minerals that originated in or around the Democratic Republic of Congo. In a 63-page opinion issued July 23, Judge Robert Wilkins rejected each of the arguments trade groups had raised against it and upheld the rule. Like Bates, Wilkins applied the Chevron test.

Plaintiffs first said the rule was arbitrary and capricious under the Administrative Procedures Act. They argued, for instance, that the SEC had failed to conduct an adequate analysis of the costs and benefits of the rule under the Securities Exchange Act—namely, whether the rule was necessary or appropriate to decrease conflict and violence in the DRC. Wilkins disagreed. The Exchange Act requires the SEC to consider the potential impact of a rule on various economic-related factors, he said. By contrast, the plaintiffs had asserted a failure to analyze humanitarian benefits. 

The plaintiffs also argued that several specific requirements of the rule were arbitrary and capricious, including the lack of a de minimis exemption and the requirement of due diligence and disclosure whenever there is “reason to believe” minerals “may have” originated in the region. Wilkins found that all of the challenged provisions were based on reasonable and permissible constructions of the statute.

Wilkins also rejected a constitutional challenge to the rule. Plaintiffs contended the rule’s requirement that companies publish disclosures on their own websites compels speech in violation of the First Amendment, but Wilkins determined that the SEC rule was proportionate to the interests Congress sought to advance and therefore survived the final challenge.

There is a chance that the trade groups could appeal the district court decision. “The question is how well funded they are,” says George Wang, a partner at Haynes and Boone. “Can they afford to do an appeal?”

Lawyers are urging their clients to proceed as if both rules will ultimately take effect. The congressional mandate to promulgate rules under Dodd-Frank remains, so ultimately they will take effect in one formulation or another.

“We’re advising our clients not to put their pencils down,” says Bradley Brasser, a partner at Jones Day.

Associate Editor

Melissa Maleske

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