Delay in Case Challenging Conflict Minerals Rules?

By Cydney Posner

There may well be some delays in any resolution of the case challenging the SEC's conflict minerals rules. As you may have seen, the case challenging the SEC's resource extraction rules that was initially filed in the D.C. Circuit was dismissed for lack of jurisdiction, and the court held in that case that the petitioner must first proceed by filing suit in district court. Because the conflict minerals rules were adopted under a similar provision of Dodd-Frank, with the case similarly filed in the D.C. Circuit, under that court's holding, it would lack jurisdiction over the conflict minerals case as well. Accordingly, the petitioners requested that the conflict minerals case be transferred to the U.S. District Court for the District of Columbia as well. The petitioners contend that a "transfer here will help to avoid delay because this case was fully briefed in this Court. If this Court transfers the case file, including the record and completed briefing, to the district court, the case can then ‘proceed as if it had been filed' in the district court in October, 2012." However, if the court decides to dismiss the case, causing the petitioners to have to refile in the district court, that would result "in a later filing date and [require] duplicative, costly, and time-consuming efforts to initiate the case and brief it for decision." The motion indicates that the petitioners "consulted with the SEC concerning this motion, and the SEC has advised that it does not oppose the transfer." The petition is also marked to show that the case will be submitted without argument on May 15.

The initial expedited schedule to which the parties had agreed in the circuit court would have allowed a decision to be rendered before the commencement of the second compliance period on January 1, 2014 and the due date for filing of the first Form SD on May 31, 2014. Whether a transfer to, or new filing in, the district court can really be accomplished without significant delay to this expedited schedule remains to be seen.

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