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There is no doubt that, as I have previously noted on this site, the conversation about ESG has changed over time, particularly as ESG has faced a political backlash. These changes not only concern ESG itself but each of its three constituent pillars – and while ESG discussions frequently focus on the “E” pillar, and in particular on climate change, the changes in the ESG conversation also concern the “S” pillar as well. Of the recent changes surrounding the Social component of ESG, arguably none is more important that the U.S. Supreme Court’s 2023 decision in Students for Fair Admissions v. Harvard College, in which the Court ruled that race-based policies should not be used in university admissions. In a May 23, 2024, Law360 article entitled “The State of Play in DEI and ESG One Year After Harvard Ruling” (here), attorneys from the Crowell & Moring law firm review the ways that the Supreme Court’s decision in the Harvard case have changed the dialog surrounding Diversity, Equity and Inclusion (DEI) and ESG.Continue Reading ESG, DEI, and the Supreme Court’s College Admissions Decision

There is no doubt that ESG both as a concept and as a social, political, and litigation phenomenon has changed over time. Due to political backlash and changing investor priorities, ESG and ESG-related issues recently have featured less prominently in general economic and business dialog than even just a short time ago. An interesting and thought-provoking May 2, 2024, article (here) from the Rock Center for Corporate Governance asks the question whether the circumstances surrounding ESG are changing because ESG “is a luxury good”? (Hat Tip to Cydney Posner’s May 13, 2024, post on the Cooley law firm PubCo blog, here). The article raises some interesting questions and reflects interesting data and observations.Continue Reading Is ESG a “Luxury Good”?

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”

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

Readers of this blog know that one of the more significant recent developments in the ESG arena has been the rise of the ESG backlash – that is, moves by state legislators and others to try to push back against a supposed ESG agenda. These developments have put company executives squarely in the crossfire, as they struggle, on the one hand, to address continued efforts by activist stakeholders to push companies toward expanded ESG commitments, and conflicting efforts by conservative politicians to punish companies for supposedly pursuing a “woke” agenda. How are companies to respond to these competing forces? Evidence suggests that increasingly companies are responding by “greenhushing” – that is, by keeping quiet about their ESG initiatives.Continue Reading Next Up on the ESG Front: Greenhushing?