As ESG-related litigation has developed, one definitive trend has been the emergence of litigation involving allegations of “greenwashing” – that is, claims alleging that companies overstated their ESG credentials in order to win business, attract customers, or score virtue points. To date, the greenwashing claims have emerged primarily in the U.S. and Europe. Now, Australia is getting into the act, as the Australian Securities and Investments Commission (ASIC) has brought and won its first greenwashing civil penalty action. As discussed below, the action involved claims that Vanguard’s Australian affiliate made misleading statements about its ESG-sorting processes for one of its index funds.Continue Reading Australian Regulator Wins First Greenwashing Enforcement Action

I have noted in prior posts on this site the phenomenon of ESG backlash, which has not only taken the form of legislative and other overtly pollical action, but has also taken the form of litigation as well. Though the ESG backlash lawsuits generally have not fared well in the courts, one of these suits recently survived a motion to dismiss.

In a February 21, 2024, ruling, the Northern District of Texas denied the motion to dismiss in a lawsuit filed by an American Airlines pilot alleging that the airline and its employee benefits committee violated their fiduciary duties under ERISA to the company’s 401(k) plan participants in connection with selection and retention of funds whose managers allegedly pursue non-economic ESG objectives rather than maximizing plan participants’ financial benefits. As discussed below, the ruling underscores just how fraught the ESG-related litigation picture has become. A copy of the court’s ruling can be found here.Continue Reading ESG Backlash ERISA Lawsuit Survives Dismissal Motion

It is not news that ESG has become a battleground issue, with prominent ESG efforts now facing an anti-ESG backlash. And while in the recent past institutional investors and advocacy groups tried to push publicly traded companies to establish their ESG credentials, the ESG-related litigation (such as it has been, so far at least) has primarily been filed not against ESG laggards, but rather against companies that have tried to promote their sustainability efforts and other climate-friendly measures.

In the latest example of litigation against a company in connection with its efforts to promote its ESG qualifications, the New York Attorney General, Letitia James has filed a fraud lawsuit in New York state court against the U.S. subsidiary of JBS, a Brazil-based meat and poultry producer, alleging that its sustainability claims and its publicized goal of achieving net zero greenhouse gas emissions by 2040 misled consumers.  A copy of the New York Attorney General’s February 28, 2024, press release about the lawsuit can be found here. The NYAG’s February 28, 2024, complaint can be found here.Continue Reading NYAG Sues Meat Company for Its Net Zero Emissions Claims

As I have noted in prior posts, due to a political “backlash” against ESG, many companies have found it expedient to avoid talking about ESG altogether – a developing that has been referred to as “greenhushing.” Indeed, some academics have even suggested that it may be time to say “RIP” to ESG. But if the expression “ESG” is now verboten, how are we going to talk collectively about the various topics encompassed by the term “ESG”?

According to a January 10, 2024, front-page Wall Street Journal article entitled “The Latest Dirty Word in Corporate America: ESG” (here), as “ESG” has become the three letters that corporate officials dare not utter, they have found other ways to talk about “responsible business.” Meanwhile, corporate environmental and social responsibility efforts continue despite the apparent banishment of “ESG” as an expression. Moreover, as also discussed below, due to regulatory changes, the likelihood is that discussion of the concepts underlying what was referred to in past as “ESG” are only going to increase, regardless whether or not the term “ESG” is used.Continue Reading Goodbye ESG, Hello “Responsible Business”

While academics and others may be asking whether it is time to “say RIP to ESG,” the fact is that though some observers may be done with ESG, ESG is not done with us. A recent action by a U.K. regulator shows that companies remain susceptible to investigations and other regulatory actions for their sustainability and other product or business-related claims. In a December 12, 2023 press release (here), the U.K. Competition and Markets Authority (CMA) announced that it has started a formal investigation into the London-based consumer products company Unilever to examine the company’s “green” claims about “a number” of its products.

As discussed below, this latest regulatory action underscores the fact that companies seeking to burnish their green credentials could be subject to scrutiny and even possible regulatory action. A December 13, 2023, Wall Street Journal article about the CMA’s investigation can be found here.Continue Reading Unilever Under U.K. Investigation for Possible “Greenwashing” Product Claims

It is no secret that I am skeptical of the usefulness of ESG as an analytic tool and even as an intellectual concept. As I have contended, there are fundamental disagreements about what ESG actually means, and the idea that it can be objectively measured and quantified is illusory, at best. Now, in an October 21, 2023, Financial Times op-ed column (here), NYU Business School Professor Aswath Damodaran argues that ESG is “beyond redemption” and it may be time to administer last rites.Continue Reading Time to Say RIP to ESG?

Persia Navidi

Readers of this blog well know that one of the current hot topics in the world of D&O is ESG – and not just in the United States, but in Europe, and elsewhere as well. In the following guest post, Persia Navidi, Partner in Insurance, Cyber and Climate Risk at Hicksons Lawyers, provides an overview of the state of play with regard to ESG in Australia, and also discusses the related insurance issues. I would like to thank Persia for allowing me to publish her 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 Persia’s article.Continue Reading Guest Post: ESG and Financial Lines Insurance in Australia

A unit of Deutsche Bank has agreed to the entry of a cease-and-desist order and to the payment of a $19 million penalty in connection with an SEC enforcement action in which the agency alleged that the unit had made materially misleading statements about its use of ESG factors into its research and investment recommendations. The ESG-related enforcement action was accompanied by a separate anti-money laundering (AML) enforcement action against the unit, Deutsche Bank’s New York-based investment advisor subsidiary, DWS Investment Management Americas (DWS), in which DWS agreed to pay a separate $6 million penalty. The ESG-related action, which apparently involved the SEC’s Climate and ESG Task Force, highlights the ways in which companies seeking to be proactive on ESG-related issues can attract claims. The action also underscores the fact that the SEC is scrutinizing ESG-related disclosures.Continue Reading Deutsche Bank Unit Hit with SEC Penalties Over ESG Claims

As the phenomenon of ESG-related litigation has developed and evolved in recent months, it has unfolded that the lawsuits are not, as was expected, being filed against ESG laggards, but instead are being filed against companies that were proactive on ESG-related issues. One of the cases illustrating this development is the securities lawsuit filed against the consumer products company Unilever, based on allegations that the company had failed to disclose a resolution passed by the independent board of its Ben and Jerry’s subsidiary to end ice cream sales in occupied Israeli territories. On August 29, 2023, In a ruling that suggests that these kinds of ESG-related cases could face challenges, Southern District of New York Judge Lorna Schofield granted the defendants’ motion to dismiss the lawsuit, on the grounds that the plaintiff had failed to sufficiently plead scienter. A copy of the August 29 opinion and order can be found here.Continue Reading ESG-Related Suit Against Unilever Based on Ben & Jerry’s Board’s Resolution Dismissed

The SEC has not yet adopted the long-anticipated final version of its proposed climate change disclosure guidelines, although there is some speculation that the final guidelines will be adopted in the Fall. In the meantime, however, sustainability reporting standards are going into effect elsewhere, with important ramifications for all companies.

On July 31, 2023, the European Commission adopted the first set of European Sustainability Reporting Standards (ESRS), which require EU and non-EU companies with specified levels of EU activity to file annual sustainability reports with their financial statements. The standards will soon become law and apply in all 27 EU Member states, with compliance requirements effective as early as 2025 for the 2024 reporting period. The ESRS as adopted on July 31, 2023, by the European Commission can be found here. The European Commission’s adoption of the first set of ESRS and the reporting standard’s requirements are described in detail in an August 11, 2023, memo from the Cooley law firm, here.Continue Reading EU Adopts Mandatory ESG Reporting Requirements