Previously, we wrote about the various petitions filed against the SEC’s final Climate-related Disclosures Rule, including one in the Fifth Circuit that led the appellate court to issue a stay on the rule. In my initial blog, I identified five cases in three circuits – that number has now grown to at least nine cases across seven circuits. This raises the question: which case will be decided first, and which ruling will control? Luckily, the SEC can consolidate all pending cases into one proceeding as covered recently in a memo from Cooley:
“As Bloomberg reports, the process is triggered by a request from the SEC to the Judicial Panel on Multidistrict Litigation to consolidate the cases. Then, one of these courts, selected randomly in a lottery—literally—could begin to determine the outcome of the stay, and the entire rulemaking, as soon as this week. According to the article, the ‘courts that have received cases related to the SEC rules would each get one entry in a ‘drum,’ from which a clerk based in Washington would draw the name of the venue to hear the consolidated case.’ This system previously has been employed in the context of federal regulations that attracted a number of challenges.”
I personally think the Judicial Panel should put all the options on one large “Wheel of Fortune” style device and give it a spin on prime-time television. The actual affair will be less exciting, although equally random. However, proceedings at the circuit level are not likely to significantly impact the inevitable appeal to the Supreme Court, brought by whichever party loses. That said, it will provide one definitive venue for the drama to play out in the near term and determine the outcome of the Fifth Circuit’s stay. And the question of timing is still very much open.
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