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D.C. Circuit Roundup: Conflict Minerals, Trolls, and Filibusted

By William Peacock, Esq. on April 18, 2014 | Last updated on March 21, 2019

It's been a busy and exciting week in the D.C. Circuit, with important decisions in a variety of cases, from conflict mineral disclosure regulations, to copyright trolls' jankety joinder, plus a failed attempt to "fix" the filibuster through the courts.

Ready for a surprisingly exciting D.C. Circuit roundup? Read on:

SEC's Conflict Mineral Disclosure Rule Unconstitutional

When the Dodd-Frank Wall Street Reform and Consumer Protection Act was passed, as part of the latter mandate, it required the Securities Exchange Commission to pass a regulation that would require companies to disclose whether their minerals were from conflict zones in Africa.

That regulation, per the D.C. Circuit's recent opinion in National Association of Manufacturers v. Securities Exchange Commission, was unconstitutionally compelled commercial speech. Applying the Central Hudson test for compelled commercial speech (a substantial government interest, directly advanced by the rule, which is narrowly tailored), the court held that not only was the conflict-free public disclosure rule not narrowly tailored, but that the government was "unable to readily quantify" any social benefits from the regulation.

Oral Arguments in Another Prenda Case

The most famous copyright trolls in the country, Prenda, took its traveling circus to the D.C. Circuit, and aside from the substantive issues in the case, the trolls were questioned about their troubles in other courts.

Here, the issue was joinder and choice of venue. Prenda sued 1,058 Does in a D.C. federal court, then subpoenaed Internet Service Providers for the defendants' true identities. The Electronic Frontier Foundation and the ISPs pointed out that the court lacked jurisdiction over many of those defendants, because of their IP addresses.

An IP address is a unique identifier attached to each Internet user. An IP address, generally, can be traced to a physical location pretty easily using a geolocation tool, such is, which can tell that this computer is in Sunnyvale, California. The EFF and ISPs argued that Prenda was required to have a good faith belief that jurisdiction and joinder was proper before filing in the D.C. district court and subpoenaing identities, but the district court disagreed.

According to the EFF, the D.C. Circuit, during oral arguments, seemed to be asking the right questions (about geolocation, jurisdiction, and whether it was proper to join over 1,000 defendants in a single lawsuit).

Filibuster Challenge Flops

Lawmakers from the House, along with the Common Cause organization, tried to get the D.C. Circuit to rule that the Senate's filibuster rule is unconstitutional. Yes, they tried to get a court to kill a legislative procedure -- this is the definition of an uphill battle.

Because of the Speech or Debate Clause in the Constitution ("for any Speech or Debate in either House, they [the lawmakers] shall not be questioned in any other Place,") Common Cause didn't sue any actual Senators. Instead, they sued Vice President Joe Biden, in his capacity as the President of the Senate, as well as a few other officials.

"In suing only non-Senators, Common Cause is 'Hoist with [its] own petar [sic],' the panel quipped. "Common Cause's alleged injury was cause not by any of the defendants, but by an 'absent third party' -- the Senate itself."

In short, the only way to sue over the Filibuster is to sue actual senators, but the Senate cannot be sued thanks to "Speech or Debate Clause."

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