October 16, 2012
Is The SEC's Resource Extraction Rule Doomed?
Posted by David Zaring

The rule requires extractors to submit a report listing payments to foreign governments, which seems consistent with Dodd-Frank and, as a disclosure rule, hardly unreasonable.  Nonetheless, the Chamber of Commerce is suing, and the SEC has had no love from the D.C. Circuit with regard to its rules.  You can see the complaint here, the rule here, and a PR page here.  CorpCounsel has a smidgen of analysis here.  Notable about this particular suit:

  • The C of C has found the most joy lately from its arguments that the SEC has failed to do an adequate cost-benefit analysis supporting its rules.  That is in this case, but it isn't front and center.  To be sure, the Chamber is noting some of the usual stuff, making hay out of the fact that there was a dissent at the Commission, and talking about the efficiency requirement on the agency that worked so well in killing the proxy acess rule.  But here it is relying on a different provision of the commission's governing legislation, one providing that the comission “shall not adopt any such rule or regulation which would impose a burden on competition not necessary or appropriate in furtherance of the purposes of this title.” 15 U.S.C. § 78w(a)(2).
  • Also new is a pretty bonkers sounding First Amendment complaint arguing that this compels specch by businesses.  How that differs from any of the other disclosure requirements imposed by the SEC is not clear.

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