Nelson Kefauver

In the following guest post, Nelson Kefauver, Head of Profin Underwriting at Intact Insurance, takes a look at how three frequent industry predictions from the recent past have turned out.  Nelson’s comments are specific to the private and non-profit D&O insurance space and not do not refer to the public company D&O insurance

The directors’ and officers’ liability environment is always changing, but 2023 was a particularly eventful year, with important consequences for the D&O insurance marketplace. The past year’s many developments also have significant implications for what may lie ahead in 2024 – and possibly for years to come.  I have set out below the Top Ten D&O Stories of 2023, with a focus on future implications. Please note that on Thursday, January 11, 2024 at 11:00 AM EST, my colleagues Marissa Streckfus, Chris Bertola, and I will be conducting a free, hour-long webinar in which we will discuss The Top Ten D&O Stories of 2023. Registration for the webinar can be found here. I hope you can join us for the webinar.Continue Reading The Top Ten Stories in D&O of 2023

By now, readers are well aware that ESG has become a politically divisive issue. In a series of variations on this theme, two conservative legal commentators, writing in a Wall Street Journal op-ed column, argue that ESG is a trojan horse for progressive political objectives that, if Delaware’s courts continue their current course, could cost the state its privileged position as the preferred jurisdiction for corporate organization. The November 25, 2023 Journal op-ed, which was written by former U.S. Attorney General William Barr and Washington Attorney and former Department of Labor official Jonathan Berry, and is entitled “Delaware is Trying Hard to Drive Away Corporations,” can be found here.Continue Reading Will Delaware’s Embrace of an “ESG Agenda” Cause Corporations to Flee?

Ever since March 2022, when the SEC released its proposed climate change disclosure guidelines, observers and commentators have watching and waiting to see when the agency would release its final disclosure rules. But in the meantime, important developments elsewhere may mean that many companies may face climate change-related disclosure requirements regardless of the shape the SEC’s final guidelines take. As I noted (here), in July, the European Union adopted its first set of sustainability reporting standards, which will have extensive impact both within and outside the EU. Now, the California legislature has adopted two far-reaching climate-related disclosure bills, which could affect thousands of companies – both public and private, and both within and outside California – and that together could, as the Wall Street Journal put it, represent “among the biggest changes in corporate disclosure in decades.”Continue Reading California Enacts Far-Reaching Climate-Related Disclosure Requirements

As I have noted in prior posts, conflicting political views about ESG-related issues have put corporate executives in the crosshairs, a dilemma that has caused some companies to try to avoid ESG issues altogether – a phenomenon that has been described as “greenhushing.” Among other concerns troubling corporate officials about the entire ESG debate is that some politicians have publicly raised the possibility that the act of taking ESG considerations into account in decision-making could itself constitute a breach of fiduciary duty.Continue Reading Disney, Fiduciary Duties, Business Judgment, and Corporate ESG-Related Actions

When the SEC established a Climate and ESG Task Force in March 2021, the agency said that the group would “develop initiatives to proactively identify ESG-related misconduct.” Since that time the Task Force has indeed filed enforcement actions alleging ESG-related misrepresentations. Now the agency has reached a settlement with the Brazil-based mining company Vale, S.A. of the Task Force’s first-filed enforcement action, in connection with alleged misrepresentations in the company’s sustainability report about the safety of the company’s mining dams. In the settlement, the company agreed to pay a total of $55.9 million. The enforcement action and its settlement signify the agency’s increasing focus on ESG-related disclosure and its willingness to pursue enforcement actions using existing procedural mechanisms. A copy of the SEC’s March 28, 2023, press release about the Vale settlement can be found here.Continue Reading Mining Company Settles SEC’s ESG Task Force’s First-Ever Enforcement Action

In what it calls the “world’s first” of its type, the environmental advocacy group ClientEarth has filed a shareholder derivative action against the board of Shell plc, claiming that the company’s directors have failed to take sufficient steps to protect the company from the future impacts of climate change. The action seeks to compel the board to “strengthen its climate transition plans, in the best interests of the company in the long term.” A copy of ClientEarth’s February 9, 2023 press release about the new lawsuit can be found here. The group’s statement of FAQ’s can be found here.Continue Reading Advocacy Group Sues Shell’s Board for Insufficient Climate Change Action

The directors’ and officers’ liability environment is always changing, but 2022 was a particularly eventful year, with important consequences for the D&O insurance marketplace. The past year’s many developments also have significant implications for what may lie ahead in 2023 – and possibly for years to come.  I have set out below the Top Ten D&O Stories of 2022, with a focus on future implications. Please note that on Thursday, January 12, 2023 at 11:00 AM EST, my colleagues Marissa Streckfus, Chris Bertola, and I will be conducting a free, hour-long webinar in which we will discuss The Top Ten D&O Stories of 2022. Registration for the webinar can be found here. I hope you will please join us for the webinar.Continue Reading The Top Ten D&O Stories of 2022

As I noted in recent posts (for example, here), an anti-ESG backlash has been forming. The backlash has already taken a variety of forms, including anti-ESG legislation and anti-ESG litigation. Now, in what one media source called a “new front in a campaign against companies” related to ESG activities, a group of five Republican senators has sent letters to 51 large U.S. law firms warning the firms that the Senators plan to use their congressional oversight powers “to scrutinize the institutionalized antitrust violations being committed in the name of ESG.” The Senators’ letter campaign is described in a November 4, 2022 Reuters article (here). The Senators’ November 3, 2022 letters to the law firms can be found here.
Continue Reading Senators Warn Law Firms Concerning ESG-Related Advice