September 13, 2013 – September 20, 2013

The summaries provided in this Weekly Recap do not necessarily represent the views of Squire Sanders (US) LLP and should not be deemed to be endorsements of them. The Recap is intended to be a compilation of articles and events to encourage discussion within the conflict minerals community and to keep our readers updated on the most recent developments. 

Business Groups File Brief in U.S. Court of Appeals Challenging Conflict Minerals Rule

On Wednesday, September 11, 2013, as scheduled, the U.S. Chamber of Commerce, the National Association of Manufacturers and the Business Roundtable filed their opening brief with the U.S. Court of Appeals for the District of Columbia Circuit.

As you may recall, last October, the business groups initially filed an Amended Petition for Review calling for the conflict minerals rule to be modified or set aside in whole or in part. This Amended Petition for Review was filed in the U.S. Court of Appeals for the District of Columbia Circuit. This past April, following the U.S. Court of Appeals’ ruling that it did not have jurisdiction to consider the challenge of the resource extraction rule (another SEC rule issued pursuant to the Dodd-Frank Act), the Business Groups voluntarily transferred the conflict minerals challenge to the district court. A few months later, in July, the district court upheld the conflict minerals rule and shortly thereafter, the business groups appealed the decision back to the U.S. Court of Appeals.

The appeal primarily rests on the same arguments the business groups put forward at the district court level. The business groups argue, among other things, that the conflict minerals rule violates the First Amendment and that it fails to include a de minimis exemption to the rule.

What’s next? Well the SEC’s opening brief is due next month, but if you want to view the entire briefing schedule please see Briefing Schedule Set for Conflict Minerals Rule Appeal.

Retail Groups file Friend-of-the-Court-Brief; Argue Exemption from Conflict Minerals Rule

On Wednesday, September 18, 2013, two retail groups, the National Retail Federation and the Retail Litigation Center Inc. filed an amicus brief in the challenge of the conflict minerals rule with the U.S. Court of Appeals for the District of Columbia Circuit.

The retailers argue that those who “contract to manufacture” products should not be subject to the conflict minerals rule. The retailers state, “Congress did not…subject those who contract to manufacture to the law’s reporting requirements; to the contrary, it is clear from the face of the statute that Congress appreciated the difference between manufacturers and those that only contract to manufacture goods.” The retailers highlight that manufacturers have more control over the component parts that make up a product compared to those like retailers who “contract to manufacture” a product.

Black Box: Conflict Minerals Policy Statement

Black Box Network Services, a leading communications systems integrator, recently released its conflict minerals policy statement. Excerpts from the statement follow. “Black Box is committed to the ethical sourcing of minerals used in our products. We are assessing whether our products contain Conflict Minerals from the Covered Countries. Our goal is to refrain from purchasing Conflict Minerals from the Covered Countries for our products except for those materials that are certified by an independent third party as ‘conflict free.’ The global supply chain for these minerals, however, is complex, and tracing the minerals in our products to their source is a challenge. Black Box is working diligently with our suppliers and other stakeholders to improve and systematically address the process for sourcing minerals that are ‘conflict-free.’”