Francis Kean

As long time readers know, I have long been warning that climate change-related issues could have a significant impact on directors and officers liability exposures. In the following guest post, Francis Kean provides a summary outline of the specific litigation exposures that corporate directors and officers may face as a result of emerging climate change-related concerns. Francis is Executive Director FINEX Willis Towers Watson. Francis will be joining McGill and Partners in early spring 2020. I would like to thank Francis for allowing me to publish his article as a guest post on this site. I welcome guest post submissions from responsible authors on topics of interest to this blog’s readers. Please contact me directly if you would like to submit a guest post. Here is Francis’s article.
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In a lengthy and detailed post-trial opinion, New York (New York County) Supreme Court Justice Barry Ostrager has ruled that the New York Attorney General failed to establish that ExxonMobil Corporation made material misrepresentations in its public disclosures concerning how the company accounted for climate change risk.  As discussed below, there are a number of interesting features to Justice Ostrager’s ruling. A copy of Justice Ostrager’s December 10, 2019 opinion can be found here.
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Once again, wildfires are raging across the length of California, from San Francisco to Los Angeles. Once again, the electricity transmission facilities of PG&E are thought to have caused or contributed to at least some of the wildfires. And once again, in the wake of the wildfires, shareholders have launched a securities class action lawsuit against company executives. As discussed below, the new lawsuit is the latest example of the way in which transformative changes arising from climate change can lead to directors’ and officers’ liability litigation.
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As I noted in a prior post, earlier this month I participated in a panel in a climate change liability event sponsored by Clyde & Co in collaboration with Willis Towers Watson as part of the Mayor of London’s Climate Action Week. In connection with the event, on July 11, 2019 the Clyde & Co law firm published an excellent, comprehensive paper on climate change developments and risks, entitled “Climate Change: Liability Risks for Businesses, Directors and Officers – The Coming Wave of Litigation” (here). This paper provides an overview of the challenges that businesses face as a result of climate change-related developments and of the potential areas of liability that may arise as a result of these developments.
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The risk of extreme weather events resulting from climate change and the collective global failure to address climate change represent the most significant current global risks, according to the World Economic Forum’s annual survey of global risks. These kinds of risks represent significant concerns for human safety, social and business disruption, and property loss. As discussed below, and as recent claims have shown, these risks may present management liability concerns as well. The World Economic Forum’s January 15, 2019 Global Risks Report can be found here.
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Unless dramatic counter-measures are taken, annual losses to the U.S. economy from climate change could reach billions of dollars by the end of the century, according to a comprehensive interagency report from the U.S. federal government released last week. Even though the report’s subject arguably is outside this blog’s bailiwick, I am highlighting the report here out of a concern that due to the report’s publication late in the afternoon on the Friday of a holiday weekend many may have missed the report and its message. The report is sober, detailed, and serious, and should be read and studied by anyone concerned about important risks facing our national economy and business environment. The bottom line is that climate change clearly represents a significant risk for all enterprises, regardless of sector and of geographic location.
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Alleged deficiencies in climate change-related disclosures have been a target of advocacy groups, shareholders, and regulators. The latest example of this phenomenon is the civil lawsuit the New York Attorney General filed on Wednesday against Exxon Mobil Corporation. The NYAG alleges that the company sought to “systematically and repeatedly deceive investors” about the future impacts climate change regulation could have on the company’s assets and value. The lawsuit underscores the fact that climate change disclosures are and will remain under scrutiny and that the claims alleging insufficient or deceptive climate change-related disclosures remain a significant area of corporate liability exposure. The October 24, 2018 complaint can be found here. The NYAG’s October 24, 2018 press release about the lawsuit can be found here.
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For some time, I have been arguing that climate change-related disclosure is going to be an increasingly hot button issue. Among other things, I have long believed that advocacy groups will attempt to use disclosure-related issues as a way to try to draw attention to climate change policies. On August 2, 2018, in the latest example of advocacy groups focusing on climate change-related disclosures, the non-profit legal group Client Earth filed complaints with the U.K. Financial Conduct Authority (FCA) against three different U.K. insurers. The legal group contends that the insurers’ annual reports failed to meet the requirements of the Disclosure Guidance and Transparency Rules due to the absence in the reports of any climate change-related disclosures.
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As I have previously noted on this site, climate change-related disclosure is a hot button issue for certain activist investors and non-governmental organization. A series of recent actions underscores the extent to which some groups are attempting to escalate these disclosure issues, with significant impact. As described below, a number of companies have joined collaborative efforts to advance climate change disclosure initiatives within their industries. These developments have relevance not only for companies’ disclosures to investors, but they may also have liability implications as well.
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