In recent months, there have been strikingly different outcomes in court challenges to two rules issued by the Securities and Exchange Commission, arising from the Dodd-Frank Wall Street Reform and Consumer Protection Act. The two decisions, both by judges in the United States District Court for the District of Columbia, reached strikingly opposing conclusions concerning the level of deference to be accorded to SEC rulemaking. The opinions appeared to reflect the political leanings of the judges — neutral principles of jurisprudence need not apply.
The first decision was issued by U.S. District Judge John Bates in American Petroleum Institute v. SEC, No. 12-1668 (JDB) (D.D.C. July 2, 2013), which concerned a provision of Dodd-Frank, codified as §13(q) of the Securities Exchange Act of 1934, that directed the SEC to issue a rule requiring publicly traded companies to submit annual reports of payments to foreign governments for the purpose of furthering the commercial development of oil, natural gas or minerals. The statute also required the SEC to publicly disclose a “compilation of the information” required in the reports. Plaintiffs — associations of oil, gas and mining companies — challenged the SEC’s rule that was issued in September 2012 on several grounds.
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