Thursday, January 9, 2014

Aaron Rodgers, Intel and the “Scarlet Letter” of Dodd-Frank- Part I

This has been a good week for those who care about the human rights crisis in the Democratic Republic of the Congo.  Green Bay Packers quarterback Aaron Rodgers joined actress Robin Wright as the latest in a string of celebrities raising awareness about “conflict minerals”, the tin, tantalum and gold that appear in cell phones, computers, automobiles, baby diapers and toothpaste. Speaking at the Consumer Electronics Show  in Las Vegas on Monday, the CEO of Intel got as much press for his declaration that his products will be “conflict-free” in 2014 as he did for his discussion about new innovations. 

The "conflict minerals" at issue are the subject of a complex regulation in Dodd-Frank that requires certain US issuers, regardless of size to conduct extensive due diligence and disclose whether or not their products are “DRC-Conflict free” so that consumers and investors can make informed decisions about whether the products may be supporting rebels involved in rape, torture and child slavery. The purpose of the law, which the SEC will regulate and enforce, is to bring peace, security and stability to the Democratic Republic of Congo. By drying up funding for the rebels, the theory goes, sexual and gender-based violence, conscription of child slaves, forced labor and other atrocities will cease.

I am on the board of an NGO, Footprints Foundation, that works in the eastern part of the country with rape survivors and with medical personnel who treat artisanal miners and their families—the people the law purports to protect. One of the doctors we work with there confirmed to me just this morning that the level of violence has not changed. I co-authored an article with a medical anthropologist about rule of law initiatives that help Congolese rape survivors finally get justice. I attended a conference at the UN in Geneva last month on Business and Human Rights, where attendees focused on making businesses more responsive to and responsible for human rights issues in supply chains. And prior to academia, I was the compliance officer for a company that manages other companies’ supply chains, so I know the ins, outs and criticality of due diligence.

I am hardly an apologist for big business, but I happily joined on to an amicus brief arguing against the Dodd-Frank conflicts minerals law, not because it may be expensive, but because I think it’s bad public policy to expect a governance disclosure to solve a geopolitical crisis.  I joined because I fear that smaller companies (not the Intels, HPs and Apples, which have done great work) will pull out of the Congo because of the expense and complexities involved in complying with the law. One Asian company that sought my consulting advice last year indicated that as a supplier for US companies, it would make sure not to source from Congo to avoid having to deal with the reporting and due diligence.  The law has no financial penalties for failing to file, but filing false or misleading reports could lead to private class actions and Section 18 liability under the Securities Exchange Act. I have blogged and written repeatedly about the reasons for my objections here,  here, here, and here among other places.

This week, the DC Circuit Court of Appeals held oral argument on a case brought by the National Association of Manufacturers against the SEC. I left sunny Florida to attend the argument and will report my impressions briefly in Part II.  For an excellent and thorough description of the argument, see here. For my play by play of the argument see my tweets at @mlnarine. 

http://lawprofessors.typepad.com/business_law/2014/01/aaron-rodgers-intel-and-the-scarlet-letter-of-dodd-frank-part-i.html

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