One of the fundamental principles on which our system of securities regulation is based is the importance of disclosure. The system is built on the notion that companies must disclose certain basic information about their operations and performance so that investors can make informed investment decisions. While the disclosures required are a matter of regulation and statute, investors’ and regulators’ expectations about what must be disclosed changes over time. Signs are that disclosure expectations — and as a result disclosure practices — are changing rapidly in two particular areas: cybersecurity and climate change.
Continue Reading Now Trending: Cybersecurity and Climate Change Disclosure Practices
Climate Change Disclosure Remains an Issue Despite U.S. Withdrawal from Paris Accord
On June 1, 2017, President Donald Trump announced the withdrawal of the United States from the Paris Climate Accord. Under the terms of the Paris pact, withdrawal could take up to four years, but the President’s recent action signals his administration’s intent to step away from the agreements and commitments detailed in agreement. The President’s action has already set in motion a host of political reactions, including a variety of pronouncements at the state and local level in the U.S. in response to the President’s move.
Amidst these actions on the political stage, a host of other actors, including shareholders, activists, and non-governmental organizations (NGOs) have continued to press climate change-related disclosure issues. These developments ensure that notwithstanding the President’s actions on the Paris accord, climate change will remain a high profile issue for many corporate boards, and potentially could be a source of future corporate claim activity.
Continue Reading Climate Change Disclosure Remains an Issue Despite U.S. Withdrawal from Paris Accord
Investors File Climate Change Related Securities Suit Against Exxon Mobil
For many years, I have been raising the possibility of climate change-related corporate and securities litigation. However, despite my best prognostication, the climate change-related corporate and securities lawsuits have basically failed to materialize – that is, until now. On November 7, 2016, investors filed a purported securities class action lawsuit in the Northern District of Texas against Exxon Mobil Corporation and certain of its directors and officers. The lawsuit specifically references the company’s climate change-related disclosures, as well as the company’s valuation of its existing oil and gas reserves. One lawsuit doesn’t make a trend, and many of the lawsuit’s allegations relates specifically to Exxon Mobil and its particular disclosures. Nevertheless, the filing of the lawsuit raises the question whether there may be other climate change-related disclosure cases ahead. A copy of the November 7, 2016 lawsuit can be found here.
Continue Reading Investors File Climate Change Related Securities Suit Against Exxon Mobil
Cybersecurity Disclosure Practices: What’s Up With That?
Cybersecurity has been and remains one of the hot topics in corporate governance. Several federal regulatory agencies, including the SEC, have made it clear that cybersecurity is a high priority item and at the top of their agenda. The SEC’s particular cybersecurity focus has been on consumer privacy and on corporate disclosure. But though the SEC has made cybersecurity issues, including disclosure, a top priority, it appears to be the case that very few public companies are actually disclosing cybersecurity and data breach incidents in their SEC filings. The current disclosure practices could be a concern for investors – and for D&O underwriters.
Continue Reading Cybersecurity Disclosure Practices: What’s Up With That?
Up Next?: Climate Change Disclosure and Corporate Liability Exposures
The question whether concerns about climate change-related disclosures might lead to regulatory enforcement actions or even liability claims has been around for some time, but though the concerns have remained, the regulatory actions and liability claims have not really materialized. However, in the past week, the service of a subpoena on Exxon Mobil Corp. by New York Attorney General Eric T. Schneiderman has raised the possibility that an enforcement action against the energy giant relating to its climate change-related disclosures may be in the works. The Attorney General’s action also raises the question whether other companies and industries could also be targeted. These possibilities highlight possible corporate climate change-related enforcement and liability exposures.
Continue Reading Up Next?: Climate Change Disclosure and Corporate Liability Exposures
Is Climate Change a D&O Insurance Issue?
In a series of letters sent to individual board members of various major energy companies and to a number of participants in the directors and officers liability insurance industry, three environmental groups contend that climate change denial by energy industry representatives presents a risk of personal liability to the individual energy company board members. The
Will the SEC’s New Interpretive Guidance Open the Door to Climate Change Disclosure Suits?
On February 2, 2010, the SEC published its interpretive release providing guidance to public companies on the SEC’s existing disclosure requirements as they apply to climate change. The release can be found here. A February 4, 2010 memo from the Gibson Dunn law firm analyzing the SEC’s release can be found here.
Will the U.N. Summit Boost Climate Change Disclosure Initiatives?
With the United Nations Climate Change Conference set to begin December 7, 2009 in Copenhagen, activists and observers are dialing up the volume both with calls for reform and with updated reports of the projected risks that global warming threatens. Among the long-standing initiatives advocates are now seeking to advance is the petition before the
New Environment for Climate Change Litigation?
While I have long predicted (refer here) the possibility of litigation against directors and officers of public companies concerning global climate change-related disclosures, to date the lawsuits have not materialized. Which is not to say that there have not been relevant developments – to the contrary, there have been many, as discussed below. There
Carbon Disclosures: Coming Soon?
On June 26, 2009, when the U.S. House of Representatives passed the American Clean Energy and Security Act of 2009, it set the stage for changes that could have a direct effect on corporate financial results. The Act has now moved to the Senate, where it could face significant hurdles. But strong White House