At the core, the court’s first amendment objection to the conflict minerals rules was that by requiring issuers to state its products have not been found to be “DRC conflict free” it compelled an issuer to “confess blood on its hands,” and that interfered with that exercise of the freedom of speech under the First Amendment.
So the SEC solution is predictably simple: File the reports without the confession.
Before continuing, it is probably worth noting that the SEC has not announced any decision as to whether it will seek a rehearing of the decision or otherwise tipped its hand as to its remaining litigation strategy. I am assuming this is an interim fix.
The SEC guidance came in the form of a statement from Keith Higgins, Director of Corporation Finance.
Interestingly, the SEC noted that the due date for the first round of reports was June 2, 2014, and the mandate from the Court of Appeals would not be effective before June 5, 2014, leaving one to wonder what might happen thereafter when the mandate was effective.
The remainder of the guidance reads as follows:
“Subject to the guidance below and any further action that may be taken either by the Commission or a court, the Division expects companies to file any reports required under Rule 13p-1 on or before the due date. The Form SD, and any related Conflict Minerals Report, should comply with and address those portions of Rule 13p-1 and Form SD that the Court upheld. Thus, companies that do not need to file a Conflict Minerals Report should disclose their reasonable country of origin inquiry and briefly describe the inquiry they undertook. For those companies that are required to file a Conflict Minerals Report, the report should include a description of the due diligence that the company undertook. If the company has products that fall within the scope of Items 1.01(c)(2) or 1.01(c)(2)(i) of Form SD, it would not have to identify the products as “DRC conflict undeterminable” or “not found to be ‘DRC conflict free,’” but should disclose, for those products, the facilities used to produce the conflict minerals, the country of origin of the minerals and the efforts to determine the mine or location of origin.
No company is required to describe its products as “DRC conflict free,” having “not been found to be ‘DRC conflict free,’” or “DRC conflict undeterminable.” If a company voluntarily elects to describe any of its products as “DRC conflict free” in its Conflict Minerals Report, it would be permitted to do so provided it had obtained an independent private sector audit (IPSA) as required by the rule. Pending further action, an IPSA will not be required unless a company voluntarily elects to describe a product as “DRC conflict free” in its Conflict Minerals Report.”
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