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Well how about that – we just wrote about how the litigation against the SEC’s Climate-related Disclosures Rule could be consolidated into one case and assigned to a circuit court by lottery. The lottery wheel has been spun and the lucky winner is … the Eighth Circuit Court of Appeals. The National Law Review writes:

“The array of challenges to the SEC’s climate disclosure rule–filed by conservative plaintiffs in the Fifth Circuit, Sixth Circuit, Eighth Circuit, and Eleventh Circuit, and by liberal groups in the Second Circuit and D.C. Circuit–will be decided by the Eighth Circuit Court of Appeals. This assignment was made by the lottery operated by the Judicial Panel on Multidistrict Litigation.”

The article goes on to say that the Eighth circuit is considered one of the more conservative circuits, with only one of its judges appointed by a Democrat. This court may not have the reputation of the Fifth, but it could be an uphill fight for the SEC on this turf – even though the SEC did make extra efforts at “litigation-proofing” the final climate rule. While the suit may drag on for years, in the immediate future we can expect the Eighth Circuit to decide whether to uphold the Fifth Circuit’s stay on the rule. Ultimately the rule will probably end up in the Supreme Court, but we’ll be able to see what arguments challengers use and how the SEC defends against them at the Circuit Court level.

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The Editor

Zachary Barlow is a licensed attorney. He earned his JD from the University of Mississippi and has a bachelor’s in Public Policy Leadership. He practiced law at a mid-size firm and handled a wide variety of cases. During this time he assisted in overseeing compliance of a public entity and litigated contract disputes, gaining experience both in and outside of the courtroom. Zachary currently assists the editorial team by providing research and creating content on a spectrum of ESG… View Profile