Earlier, the United States Court of Appeals for the District of Columbia Circuit ordered the appellants in the conflict minerals case, NAM et al, to file a response to the SEC’s and Amnesty International’s petition for an en banc rehearing.
The response has now been filed. NAM says there is no need for a rehearing. According to NAM the standard for a rehearing isn’t met because the case presents no conflict in the DC Circuit’s decisions or with decisions of the Supreme Court or other Courts of Appeals.
Maybe it’s not surprising so far because the court essentially ruled in favor of NAM. Then NAM says what it really wants – the appellate panel should amend its decision in light of the American Meat case to clarify that the compelled statement is not eligible for Zauderer rational basis review. The reason Zauderer doesn’t apply is the conflict minerals disclosure does not constitute “purely factual and uncontroversial information.”
According to NAM, doing anything else would break dangerous new ground:
“Appellants are aware of no case permitting the government to require a company to adopt an ideological slogan written by the government that attacks the company and its products, and neither the SEC nor Amnesty has cited any such case. If such requirements were deemed permissible, the temptation for Congress and state legislatures to require similar self-shaming measures across a range of controversial issues could be irresistible.”
The response also includes predictable references to the “scarlet letter,” issuers with “blood on their hands” and like rhetoric that has become familiar in this case.