金融規制改革法—商務省紛争鉱物報告書—1502条(d)項(3)号(C)

金融規制改革法金融規制改革法1502条(d)項(3)号(C)は,次の通り定めています。

(3) REPORT ON PRIVATE SECTOR AUDITING.—Not later than 30 months after the date of the enactment of this Act [January 21, 2013], and annually thereafter, the Secretary of Commerce shall submit to the appropriate congressional committees a report that includes the following: … (C) A listing of all known conflict mineral processing facilities worldwide.

米国商務省は,金融規制改革法1502条(d)項(3)号(C)1 に基づく商務省紛争鉱物報告書を発表しました2

商務省は,この報告書の冒頭において,同報告書の一覧に掲載された施設が紛争の資金源になっているか否かは判別できなかったと述べています。

The list includes all known processing facilities that process the minerals tin, tantalum, tungsten, or gold, but does not indicate whether a specific facility processes minerals that are used to finance conflict in the Democratic Republic of the Congo or an adjoining country. We do not have the ability to distinguish such facilities.

これは実務でどれくらい役に立つものなのでしょうか。

via TheCorporateCounsel.net, Steve Quinlivan, Cydney Posner

  1. Dodd-Frank Act, Section 1502(d)(3)(C). []
  2. Department of Commerce, Department of Commerce Reporting Requirements Under Section 1502(d)(3)(C) of the Dodd-Frank Act World-Wide Conflict Mineral Processing Facilities (Sept. 2014). []

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

Dodd-Frank 953(b) Pay-Ratio Disclosure

SECが金融規制改革法953条(b)項に基づき,CEOの報酬の一般従業員との比率に関する規則を提案しました。

もともと批判が多かった条文ですから,規則に対する批判も多そうです。実際,SECでの規則提案は,3対2だったようです。規則の本文を挙げておきます。

via GD&C, CLS Blue Sky Blog, N.Y. Times, PB.com, DP&W, S&C, DP&W, TheCorporateCounsel.net

金融規制改革法に基づき制定された資源採掘発行体(resource extraction issuers)に関する規則の無効宣言—American Petroleum Institute v. SEC, 2013 U.S. Dist. LEXIS 92280 (D.D.C. 2013) (2)

過日,SECがコロンビア特別区合衆国控訴裁判所で敗訴した資源採掘発行体 (resource extraction issuers)に関する規則(金融規制改革法1504)について,SECは,上訴しない方針のようです。

via Race to the Bottom