デラウェア州一般会社法の改正(2014年)

今年のデラウェア州一般会社法の改正案です。

どれが重要かの判断もつかないのですが,251条(h)項の改正は,米国企業を買収しようとする日本企業にも影響を与えそうです。

via DealLawyers, Skadden, Richards, Layton & Finger, ABA, Morris Nicholas

Conflict Minerals規則に関する訴訟 (2)—National Association of Manufacturers v. S.E.C., 2014 WL 1408274 (D.C. Cir. Apr. 14, 2014)

Conflict Minerals規則に関する訴訟(1)では,地裁判決に言及しましたが,今回は,控訴裁判決です。

National Ass’n of Mfrs. v. S.E.C., 2014 WL 1408274 (D.C. Cir. Apr. 14, 2014)では,金融規制改革法1502条のConflict Mineralsの規定を一部無効としました。関係する部分は,次の通りです。

This brings us to the Association’s First Amendment claim. The Association challenges only the requirement that an issuer describe its products as not “DRC conflict free” in the report it files with the Commission and must post on its website. That requirement, according to the Association, unconstitutionally compels speech. The district court, applying Central Hudson Gas & Electric Corp. v. Public Service Commission rejected the First Amendment claim. We review its decision de novo.

[*9] The Commission argues that rational basis review is appropriate because the conflict free label discloses purely factual non-ideological information. We disagree. Rational basis review is the exception, not the rule, in First Amendment cases. The Supreme Court has stated that rational basis review applies to certain disclosures of “purely factual and uncontroversial information.” But as intervenor Amnesty International forthrightly recognizes, we have held that Zauderer is “limited to cases in which disclosure requirements are ‘reasonably related to the State’s interest in preventing deception of consumers.’ ” No party has suggested that the conflict minerals rule is related to preventing consumer deception. In the district court the Commission admitted that it was not.

That a disclosure is factual, standing alone, does not immunize it from scrutiny because “[t]he right against compelled speech is not, and cannot be, restricted to ideological messages.” Rather, “th[e] general rule, that the speaker has the right to tailor the speech, applies … equally to statements of fact the speaker would rather avoid.” As the Supreme Court put it in Riley v. National Federation of the Blind of North Carolina, Inc., the cases dealing with ideological messages “cannot be distinguished simply because they involved compelled statements of opinion while here we deal with compelled statements of ‘fact.’ ”

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. See id.

… Having established that rational basis review does not apply, we do not decide whether to use strict scrutiny or the Central Hudson test for commercial speech. That is because the final rule does not survive even Central Hudson’s intermediate standard.

Under Central Hudson, the government must show (1) a substantial government interest that is; (2) directly and materially advanced by the restriction; and (3) that the restriction is narrowly tailored. The narrow tailoring requirement invalidates regulations for which “narrower restrictions on expression would serve [the government’s] interest as well.” Although the government need not choose the “least restrictive means” of achieving its goals, there must be a “reasonable” “fit” between means and ends. The government cannot satisfy that standard if it presents no evidence that less restrictive means would fail.

The Commission has provided no such evidence here. … We therefore hold that 15 U.S.C. § 78m(p)(1)(A)(ii) & (E), and the Commission’s final rule, 56 Fed.Reg. at 56,362–65, violate the First Amendment 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.’ ”

The judgment of the district court is therefore affirmed in part and reversed in part and the case is remanded for further proceedings consistent with this opinion.

So ordered.

(citations and footnotes omitted)

〔2014年4月17日追記〕

  • de minimus exceptionが存在しないことについて (II.A.)—規則を維持

The Commission did not act arbitrarily and capriciously by choosing not to include a de minimis exception. Because conflict minerals “are often used in products in very limited quantities,” the Commission reasoned that “a de minimis threshold could have a significant impact on the final rule.” 77 Fed.Reg. at 56,298 (quoting U.S. Dep’t of State Responses to Request for Comment). The Association suggests that this rationale would not apply to de minimis thresholds measured by mineral use per-issuer, instead of perproduct. Although that sort of threshold was suggested in a few comments, those comments did not explain the merits of the proposal or compare it to other thresholds. The Commission was not obligated to respond to those sorts of comments. See Pub. Citizen, Inc. v. FAA, 988 F.2d 186, 197 (D.C.Cir.1993); see also Alianza Fed. de Mercedes v. FCC, 539 F.2d 732, 739 (D.C.Cir.1976). In any event, the Commission’s rationale still applies to a per-issuer exemption. Having established that conflict minerals are frequently used in minute amounts, the Commission could reasonably decide that a per-issuer exception could “thwart” the statute’s goals by leaving unmonitored small quantities of minerals aggregated over many issuers. Though costly, that decision bears a “rational connection” to the facts. Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983).

  • due diligenceについて(II.B.)—規則を維持

We also reject the Association’s argument that the Commission’s due diligence threshold was arbitrary and capricious. The Commission adopted a lower due diligence threshold to prevent issuers from “ignor[ing] … warning signs” that their conflict minerals originated in covered countries. 77 Fed.Reg. at 56,313. In particular, the Commission wanted issuers who encounter red flags to “learn[ ] the ultimate source” of their conflict minerals. Id. at 56,314. Requiring a good-faith inquiry does not resolve the Commission’s concerns. A good-faith inquiry could generate red flags but, without a further due diligence requirement, those red flags would not give way to “ultimate” answers, which result would “undermine the goals of the statute.” Id.

  • Persons Describedの解釈について(II.C.)—規則を維持

Potential “internal[ ] inconsisten[cy]” between the due diligence and personsdescribed provisions also persuades us that the statute is ambiguous … The Commission’s interpretation is therefore reasonable because it reconciles otherwise confusing and conflicting provisions “into an harmonious whole.”

via Covington & Burling, David Polk & Wardwell, Alston & Bird, Schulte Roth & Zabel, Mayer Brown, Debevoise & Plimpton, Corporate & Securities Law Blog, Conglomerate, ProfessorBainbridge.com, RacetotheBottom, D&O Diary, ProfessorBainbridge.com, TheCorporateCounsel.net, MayerBrown

論文

最近の気になった論文を挙げます。

〔2014年4月11日追記〕
* J. Travis Laster, Omnicare’s Silver Lining, 38 J. Corp. L. 795 (2013)

via Delaware Litigation

Yale大学における国際金融に関するカンファレンス(2013)

Yale大学におけるSullivan & Cromwell Conference on Challenges in Global Financial Servicesと題された国際金融に関するカンファレンスです。幾つかのビデオがありあます。

  • Panel I: Bank Capital and Liquidity Requirements

パネリストは次の通りです。

  • Stijn Claessens, Assistant Director, Research Department, International Monetary Fund
  • Michael H. Krimminger, Partner, Cleary Gottlieb Steen & Hamilton LLP and former General Counsel, Federal Deposit Insurance Corporation (FDIC)
  • Andrew Metrick, Deputy Dean for Faculty Development & Michael H. Jordan Professor of Finance and Management, Yale School of Management
  • Roberta Romano ’80, Sterling Professor of Law and Director, Yale Law School Center for the Study of Corporate Law
  • Moderator: Ian Ayres ’86, William K. Townsend Professor of Law, Yale Law School

  • Panel II: Bank Transparency and the Financial Crisis

パネリストは次の通りです。

  • Robert J. Giuffra, Jr. ’87, Partner, Sullivan & Cromwell LLP
  • Gary B. Gorton, Frederick Frank Class of 1954 Professor of Management and Finance, Yale School of Management
  • Henry T. C. Hu ’79, Allan Shivers Chair in the Law of Banking and Finance, University of Texas Law School, and former Director, Division of Risk, Strategy, and Financial Innovation, U.S. Securities and Exchange Commission
  • Frederick Schauer, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law
  • Moderator: Donald Kohn, Senior Fellow, Brookings Institution and former Vice Chairman, Federal Reserve Board

  • Panel III: Accountability and Structuring of Systemically Important Financial Institutions

パネリストは次の通りです。

  • H. Rodgin Cohen, Senior Chairman, Sullivan & Cromwell LLP
  • Edward J. Kane, Professor of Finance, Boston College
  • Andrew W. Lo, Charles E. and Susan T. Harris Professor, MIT Sloan School of Management and Director, MIT Laboratory for Financial Engineering
  • John F. Simonson, Deputy Director for Systemic Resolution Planning and Implementation, Office of Complex Financial Institutions, FDIC
  • Moderator: Henry B. Hansmann ’74, Oscar M. Ruebhausen Professor of Law, Yale Law School

  • Panel IV: Cross-Border Resolution

パネリストは次の通りです。

  • James W. Giddens ’66, Chair, Corporate Reorganization and Bankruptcy Group, Hughes Hubbard & Reed LLP and Liquidation Trustee, Lehman Brothers Inc. and MF Global Inc.
  • Seth Grosshandler, Partner, Cleary Gottlieb Steen & Hamilton LLP
  • Richard J. Herring, Jacob Safra Professor of International Banking & Professor of Finance, The Wharton School, University of Pennsylvania
  • Jonathan R. Macey ’82, Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law, Yale Law School
  • Moderator: John D. Morley ’06, Associate Professor of Law, Yale Law School