Today, Global Witness and Amnesty International (“GW/AI”) published Digging for Transparency: How U.S. companies are only scratching the surface of conflict minerals reporting. The report was also covered in Bloomberg news, Reuters, BBC and reflected in the OpEd section of the New York Times. In the report, the two groups claim that
… almost eighty percent of companies in the sample, many of which are household names, failed, in our assessment, to meet the minimum requirements of the law.
This is surprising to say the least, given that we completed a comprehensive analysis of all 1300 filings and came to a dramatically different conclusion1. We took a detailed look into the GW/AI report to understand the data and conclusions.
Perhaps not surprisingly, their numbers and methodology develop misleading findings to support their sensational headline. Several contradictions were identified between the text, the numbers and facts. Although the text sometimes (but not always) clarified that certain reporting elements are not actually mandated by the SEC requirements, the statistics portray the elements as being required. This theme runs through the entire report – the statistics reflect GW’s and AI’s preferences for the content/detail of conflict minerals reports, but not noncompliance with the legal requirements.
One example of this inconsistency on page 7 of the report states that “Awareness by companies of the need to follow OECD guidance was extremely high, with ninety-six percent of the companies we analyzed stating that their reports conformed to the standard“, yet the following statement is made later:
Only forty-six percent of the surveyed companies provided information to the SEC about what they had done to follow each of the five steps in the guidance. Responsible companies should describe their supply chain checks in detail.2
The word “should” is correct. How companies describe their due diligence framework and measures is not prescribed by the SEC rule.
Another example is the basis for how they arrived at their figure of 80% noncompliance3 . The groups used twelve criteria against which their sampling of reports was assessed (see page 6). Figure 3 on page 15 shows the percentage of the sampled reports that meet these criteria. Interestingly, only three of those criteria are legally mandated without discretionary implementation (“Do RCOI”, “Submit report”, and “Report on website”), and the report shows close to 100% compliance on those elements. Filers have significant discretion on how they report on eight of the elements (for which the report shows a much lower level of conformance) and are based on data sources the filers have limited control over. Where filers’ discretionary approach to reporting differs from GW/AI’s desires, the groups considered that to be a noncompliance, and the reported percent “compliance” drops off significantly.
The remaining element (“Determine if under the law”) is a bit baffling. Filers are not required to affirmatively file or otherwise state that they are not covered by the law, so by definition all filers are covered by the law. Specifically stating that they are covered is neither mandated nor sensical.
The report further states that “for the companies who filed Conflict Minerals Reports, doing due diligence in conformity with the OECD guidance is a legal requirement of Section 1502.4 While this is correct, one can argue about whether it is legally mandated to address all components of the OECD Guidance. The ambiguity comes from the fact that the rule takes a voluntary framework – written in terms of “should” and allowing companies to implement it based on their own circumstances and position in the supply chain – and incorporates it by reference into a legal mandate. So we are faced with a requirement that allows discretionary implementation. This is the same conundrum faced by EPA in the early 1990s when it considered mandating the use of the voluntary ISO 14001 environmental management standard.
GW/AI criticized the Conflict Free Sourcing Initiative’s (CFSI’s) smelter/refiner auditing program, stating that
… the audit protocols do not require all of its participating metal processors to undertake supply chain due diligence in accordance with the OECD guidance.5
In reality, the protocols and procedures do guide the CFS auditor to review documentation from industry associations such as ITSCi, Certified Trading Chains and the ICGLR Regional Certification Mechanism for supply chain due diligence activities conducted by or for the smelter/refiner. In fairness to GW/AI, the extent to which this is done by the CFS auditors is unclear.
These are only a few examples from the report.
It is our view that the report and its conclusions take liberties with facts and interpretations of the legal mandate. While Global Witness and Amnesty International may have certain desires for the content of the SEC filings, that does not make for noncompliance with the legal mandates.
1 The GW/AI report states that 1321 reports were filed with SEC, which we think double counts for amended filings by also including the original filing superseded by the amendment. They selected only 100 companies (less than 8% of the total filers) to review and assess, some of which are our clients.
2 Page 19.
3 “The main finding of our analysis is that only twenty- one percent of companies in our sample met all twelve of the criteria that constitute the minimum requirements of Section 1502 (see Methodology section above). While these criteria do not represent an exhaustive list of steps companies should take, this demonstrates that seventy-nine percent of companies we analyzed did not meet the minimum requirements of the law.” Page 15.
4 Page 12.
5 Page 26.