Category: ESG
SEC’s Investor Advisory Committee discusses tracing in §11 litigation and shareholder proposals—will they recommend SEC action?
Last week, at the SEC’s Investor Advisory Committee meeting, the Committee discussed two topics described as “pain points” for investors: tracing in §11 litigation and shareholder proposals. In the discussion of §11 and tracing issues, the presenting panel made a strong pitch for SEC intervention to facilitate tracing and restore §11 liability following Slack Technologies v. Pirani. The panel advocated that the Committee make recommendations to the SEC to solve this problem. With regard to shareholder proposals, the Committee considered whether the current regulatory framework appropriately protected investors’ ability to submit shareholder proposals or did it result in an overload of shareholder proposals? Was Exxon v. Arjuna a reflection of exasperation experienced by many companies? No clear consensus view emerged other than the desire for a balanced approach and a stable set of rules. Recommendations from SEC advisory committees often hold some sway with the staff and the commissioners, so it’s worth paying attention to the outcome here.
ICYMI—Say goodbye to the SEC’s Climate and ESG Task Force
In case it escaped your notice a few months back—as it did mine—Bloomberg is now reporting that the SEC has “quietly disbanded” its Enforcement Division’s Climate and ESG Task Force. You remember the task force? Back in 2021, when Allison Herren Lee was Acting Chair of the SEC, she directed the staff of Corp Fin to “enhance its focus on climate-related disclosure in public company filings.” Shortly thereafter, the SEC announced that the new climate focus would not be limited to Corp Fin—the SEC had created a new Climate and ESG Task Force in the Division of Enforcement. While the initial focus of the Task Force was to identify any material gaps or misstatements in issuers’ disclosure of climate risks under then-existing rules, the remit of the Task Force went beyond climate to address other ESG issues. Lee said that the Task Force was designed to bolster the efforts of the SEC as a whole in addressing climate risk and sustainability, which were “critical issues for the investing public and our capital markets.” (See this PubCo post.) Now, an SEC spokesperson has advised Bloomberg that it has “shut down its Enforcement Division’s Climate and ESG Task Force within the past few months.”
Keurig settles SEC “greenwashing” charges
According to a 2023 survey discussed in Global Executives Say Greenwashing Remains Rife in the WSJ, executives think greenwashing is widespread: almost “three-quarters of executives said most organizations in their industry would be caught greenwashing if they were investigated thoroughly.” Moreover, almost “60% say their own organization is overstating its sustainability methods.” However, the article suggested, although some companies may be intentionally overstating their progress, for the most part, the greenwashing is more benign: companies set their sustainability goals but didn’t have a “concrete plan” to achieve them or reliable data to measure them. According to the survey, 85% of executives believe that “customers and clients are becoming more vocal about their preference for engaging with sustainable brands,” creating more impetus for sustainability initiatives. By the same token, these external influences also create more pressure for greenwashing. The article reports that the risks related to greenwashing are increasing, with the threat of potential “crackdowns.” (See this PubCo post.) Last week, the SEC charged Keurig Dr Pepper with making inaccurate statements in its Forms 10-K for fiscal 2019 and 2020 regarding the recyclability of its K-Cup beverage pods used to make coffee and other beverages in Keurig’s single-serve brewing systems. According to the Associate Director of the SEC’s Boston Regional Office, “Public companies must ensure that the reports they file with the SEC are complete and accurate….When a company speaks to an issue in its annual report, they are required to provide information necessary for investors to get the full picture on that issue so that investors can make educated investment decisions.” To settle the SEC’s charges, Keurig agreed to pay a $1.5 million civil penalty. Commissioner Hester Peirce had a few words to say in dissent.
What’s going on with the SEC’s proxy advisor rules?
Shall we catch up on some of the recent developments regarding the SEC’s proxy advisor rules? First, let’s take a look at what’s happening with the appeal of the opinion of the D.C. Federal District Court in ISS v. SEC, which, in February of this year, vacated the SEC’s 2020 rule that advice from proxy advisory firms was a “solicitation” under the proxy rules. Both the SEC and National Association of Manufacturers had filed notices of appeal in that case, but the SEC has mysteriously dropped out of that contest. Then, with regard to the separate ongoing litigation over the 2022 amendments to the proxy advisor rules—which reversed some of the key provisions in the 2020 rules—a new decision has been rendered by a three-judge panel of the 6th circuit, U.S. Chamber of Commerce v. SEC, upholding the 2022 amendments, thus creating a split with the recent decision of the 5th Circuit, National Association of Manufacturers v. SEC, on the same issue.
Are you ready for anti-anti-ESG?
You all remember the reams of anti-ESG bills that poured out of some of the states, not to mention the U.S. House? According to Reuters, some “states have unleashed a policy push to punish Wall Street for taking stances on gun control, climate change, diversity and other social issues, in a warning for companies that have waded in to fractious social debates.” A 2022 Reuters analysis found that there were at least 44 bills or new laws in 17 states “penalizing such company policies, compared with roughly a dozen such measures in 2021.” (See this PubCo post.) In 2023, an article in Institutional Investor reported, 198 pieces of legislation were introduced, 23 laws passed and 6 resolutions adopted. And in 2024, the article reports, state legislators wrote 161 bills and resolutions in 28 states for consideration, with six bills passed so far. (See this PubCo post.) Recently, however, ESG proponents have begun to employ a more aggressive strategy regarding anti-ESG legislation. They’re now playing in the same sandbox as the anti-ESG groups, pursuing anti-anti-ESG litigation—premised in part on…wait for it…the First Amendment, one of the favored legal strategies, of course, of the anti-ESG groups. What’s good for the goose is good for the gander? What goes around comes around? As the call, so the echo? A couple of cases may illustrate the phenomenon. Will we see more?
What were the major trends of the 2024 proxy season on ESG shareholder proposals?
This article from Morningstar published on the Harvard Law School Forum on Corporate Governance examines three major trends of the 2024 proxy season regarding environmental, social and governance shareholder proposals. The author, the Director of Investment Stewardship Research at Morningstar, reports that, while the number of ESG-related proposals increased, there was a “twist in the tale”: the increase primarily reflected a jump in anti-ESG proposals. Although support for ESG proposals on the whole was relatively flat at 23%, Morningstar found a “rebound in support for governance-focused proposals,” offsetting a decline in support for E&S proposals.
What’s the impact of political spending from corporate treasuries?
This new report, Corporate Underwriters: Where the Rubber Hits the Road, from the nonpartisan Center for Political Accountability, examines “the scope of corporate political spending and its impact on state and national politics and policy” by taking a deeper dive into six highly influential “527” organizations. Who supports them and what is their impact? In particular, what is their impact on a state level—now viewed by many as a new “seat of power” for a number of key issues of the day, from reproductive healthcare rights to voting rights to the rules surrounding vote tabulation and certification of elections. According to the report, since 2010, more than $1 billion has been donated from the corporate treasuries of major U.S. companies and their trade associations to these six 527s, characterized in the report as “powerful but often overlooked political organizations that have funded the elections of state government officials across the country. These elections have reshaped policy and politics and, more fundamentally, have had a major impact on our democracy.” The CPA’s vice president of research told Bloomberg that “corporate funding of down-ballot races typically gets significantly less attention than contributions to federal candidates but…that’s changing. State attorneys general, ‘are increasingly more partisan in the way they wield their power on a national stage.’ That can create ‘riskier associations’ for companies that back such organizations.” The report concludes that corporate treasuries are “influential funder[s] of these elections and the dominant source of money for several of these committees. It examines the impact of corporate spending on some of the most controversial issues in the country. This spending poses serious risks to companies’ reputations, their profitability, and to the environment companies need to succeed.” Would adopting a code of political spending help? According to a recent survey, shareholders seem to think so.
New Cooley Alert: ISS Opens Survey for 2025 Policy Changes; Glass Lewis Seeks Informal Feedback
It’s that time again—ISS and Glass Lewis have launched their annual policy surveys, where they seek your feedback on some of their policies. That makes it just right time to get the scoop from this helpful new Cooley Alert, ISS Opens Survey for 2025 Policy Changes; Glass Lewis Seeks Informal Feedback, from our Compensation and Benefits and Public Companies groups. As discussed in the Alert, both surveys address executive comp issues; separately, ISS “focuses more on shareholder proposal-related policies,” and Glass Lewis asks “numerous questions regarding board oversight and performance, including director accountability.” The Alert suggests that the 2025 amendments “may be relatively low impact,” consistent with the “relatively minor policy amendments from ISS and Glass Lewis in 2024.” Be sure to check out the new Alert!
You must be logged in to post a comment.