By Sarah N. Lynch
WASHINGTON, Oct 10 (Reuters) - Four business groups on
Wednesday filed a lawsuit against the U.S. Securities and
Exchange Commission's new rule requiring oil, mining and gas
companies to disclose payments they make to foreign governments.
The lawsuit marks the latest in a string of legal challenges
against regulators still struggling to finalize dozens of rules
included in the 2010 Dodd-Frank Wall Street reform law.
A key argument in the suit - filed by the U.S. Chamber of
Commerce, the American Petroleum Institute, and two other groups
- is that the SEC failed to adequately weigh the rule's costs
and benefits.
Problems with economic analysis have proven to be a
successful tool for the industry in combating prior SEC rules,
including its "proxy access" rule that would have empowered
shareholders to nominate directors to corporate boards.
"The rule as written would impose enormous costs on U.S.
firms and put them at a competitive disadvantage against
government-owned oil giants not subject to the rule," said API
Chief Executive Officer Jack Gerard in a statement late
Wednesday.
"Not only will the rule hurt the millions of Americans who
own shares in oil and natural gas companies, it will also cost
jobs and damage America's energy security by making it more
difficult for U.S. firms to gain access to resources abroad."
SEC spokesman John Nester said the agency is still reviewing
the lawsuit, but that the SEC thinks it is on solid legal
ground.
"We believe our legal interpretation and economic analysis
are sound and we look forward to defending the rule that
Congress directed us to write," Nester said.
The SEC's resource extraction rule is one of the most
controversial Dodd-Frank requirements.
Championed by humanitarian organizations, the rule aims to
combat bribery abroad by U.S. energy companies. But industry
groups have argued the rule is far too costly and would give
rivals sensitive business information.
The challenge to the SEC's rule is being headed up by Gibson
Dunn attorney Eugene Scalia, the son of Supreme Court Justice
Antonin Scalia. He has a winning-streak in knocking down other
SEC regulations, such as the proxy access rule last year.
Late last month, Scalia also helped other trade groups win a
court battle against the Commodity Futures Trading Commission
over another Dodd-Frank rule that would have imposed "position
limits" on commodity speculators.
In addition to challenging the rule on the basis of flawed
economic analysis, Wednesday's lawsuit deploys three other legal
arguments.
It alleges, for instance, that the SEC "grossly
misinterpreted its statutory mandate" in claiming that
Dodd-Frank gave the agency no choice but to adopt the rule in
the form that it did.
The groups say the law only requires companies to provide a
"compilation" of the payment data - and not a detailed list of
every payment, as the SEC's final rule calls for.
Scalia used a similar type of argument that helped him win
the position limit case last month, after a federal district
court judge ruled that the CFTC could not simply claim
Dodd-Frank mandated position limits without first showing why
they were necessary.
Wednesday's lawsuit also says the SEC is violating
companies' First Amendment rights because the forced disclosure
would be "in violation of their contractual and legal
commitments."
The disclosure required by the rule "does not further the
investor protection purposes of the securities laws," it says.
A First Amendment argument was similarly waged in the battle
against proxy access, but the Washington D.C. circuit court did
not take it up and based its decision to strike down the rule
on the cost-benefit argument.
In addition, the Chamber and API's case makes use of a legal
argument not used in recent challenges to SEC rules - that the
agency could have used its discretion to provide an exemption
from its rule and failed to consider it.
"The commission arbitrarily rejected any exemption from the
rule's disclosure requirements," the suit says.
The SEC adopted the resource extraction rule in August in a
2-1 vote, with Republican Commissioner Daniel Gallagher voting
no and two other commissioners recused from participating.
In his dissent, Gallagher said the SEC had failed to
determine the benefits of the rule and disregarded the
"significant costs" to companies and shareholders.
The other two groups to challenge the rule on Wednesday were
the Independent Petroleum Association of America and the
National Foreign Trade Council.
The case was filed in both the District Court for the
District of Columbia and the United States Court of Appeals for
the District of Columbia until it can be determined which court
will have jurisdiction to hear the case.
(Additional reporting by Aruna Viswanatha)
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