TCFD 2019 status report on climate-related disclosure finds improvement, but “progress must be accelerated”

At the WSJ’s CFO Network Annual Meeting this week, the WSJ reported, speakers warned that finance chiefs were “underestimating how climate-related risks, such as extreme weather and changing consumer views on environmental issues, could affect their companies’ bottom lines, and they need to make climate risk assessments a bigger priority.” As reported by the NYT, a member of the CFTC has cautioned that it is “‘abundantly clear that climate change poses financial risk to the stability of the financial system,’” comparing the financial risks from climate change “to those posed by the mortgage meltdown that triggered the 2008 financial crisis.” And, in a survey conducted by a major investment bank of over 600 investors with about $21.5 trillion in assets globally, large investors indicated that they “expect environmental factors will become more pertinent to their investments than traditional financial criteria over the next five years, with more than 80 percent indicating it would be a ‘material risk’ not to integrate ESG factors.” NGOs and other stakeholders have emphasized that transparency is important to allow investors and the financial markets to understand companies’ risk management and corporate governance practices and to make informed decisions regarding capital allocation. In that context, the 2019 status report on company  disclosure regarding climate-related risks and opportunities, just released by the Financial Stability Board’s Task Force on Climate-related Financial Disclosures, sheds some light on the extent of the progress companies are making in helping investors and others better understand those risks.

PCAOB staff provides guidance on audit committee communications in wake of independence violations

Under PCAOB Rule 3520, the auditor “must be independent of the firm’s audit client throughout the audit and professional engagement period,” which includes satisfying the independence criteria of the SEC and the PCAOB. But what happens when the auditor violates one of the independence rules—let’s say one of the specific prohibitions under Rule 2-01(c) of Reg S-X? Can the auditor’s violation be “cured”? Can the auditor still affirm its independence? How is that determined? 

Companies report financial impact of climate risk

Non-profit CDP (fka the Carbon Disclosure Project) has released its analysis of the responses to its climate change questionnaire for 2018 from two groups of companies—a large group of almost 7,000 respondents and, analyzed separately, a group of 366 respondents that were among the world’s 500 largest companies (by market cap). The analysis focused on the risks and opportunities presented by climate change and, for the first time, the analysis considered companies’ expectations regarding the potential  financial impact of climate risk. In the aggregate, the amount reported was eye-popping, if not exactly surprising, and, given that many companies did not respond at all, is undoubtedly an underestimate.  Notably, however, the aggregate amount companies attributed to potential climate-related opportunities was even “bigger than the risks.” The significance of the potential financial implications, together with the imminence of these risks, suggest that companies may need to think hard about climate risks and the associated financial implications in crafting their public disclosures.

Mandatory arbitration shareholder proposal to J&J takes on larger dimensions

Here’s an interesting turn of events with regard to the case involving the mandatory arbitration shareholder proposal to Johnson & Johnson. You may recall that, last year, a Harvard law professor submitted a shareholder proposal to Johnson & Johnson requesting that the company adopt mandatory shareholder arbitration bylaws. Corp Fin issued a no-action letter to J&J granting relief if the company relied on Rule 14a-8(i)(2) (violation of law) to exclude the proposal. (See this PubCo post.) In that letter, the staff relied on an opinion from the Attorney General of the State of New Jersey advising the SEC that the proposal was excludable under Rule 14a-8(i)(2) because “adoption of the proposed bylaw would cause Johnson & Johnson to violate applicable state law.” The issue was so fraught that SEC Chair Jay Clayton felt the need to issue a statement supporting the staff’s hands-off position and advocating, in effect, that the parties seek a binding answer in court—which is exactly what happened.  On March 21, the proponent of the proposal filed this complaint.  (See this PubCo post.) Now, two big public pension funds have sought to intervene and, as a result, the case may have just taken on larger dimensions.

SSGA provides guidance for board oversight of climate risk

As noted in the proxyseason blog from thecorporatecounsel.net, asset manager State Street Global Advisors has recently published an updated Climate Change Risk Oversight Framework For Directors. Climate change is identified as a continuing priority for SSGA’s asset stewardship and company engagement program. In the commentary introducing the framework, SSGA advises that boards should look at climate change “as they would any other significant risk to the business and ensure that a company’s assets and its long-term business strategy are resilient to the impacts of climate change.”  A similar view was expressed by the NACD in Board Oversight of ESG, which advises that “climate-related risks must be integrated into the company’s ongoing risk assessment and quantification processes and the board’s oversight of risk management.”

What’s on the SEC’s new RegFlex Agenda?

SEC Chair Jay Clayton has repeatedly made a point of his intent to take the Regulatory Flexibility Act Agenda “seriously,” streamlining it to show what the SEC actually expected to take up in the subsequent period.  (Clayton has previously said that the short-term agenda signifies rulemakings that the SEC actually planned to pursue in the following twelve months. See this PubCo post and this PubCo post.)  The SEC’s Spring 2019 short-term and long-term agendas have now been posted, reflecting the Chair’s priorities as of March 18, when the agenda was compiled. What stands out is not so much the matters that show up on the short-term agenda—although there are plenty of significant proposals to keep us all busy—but rather the legislatively mandated items that have taken up protracted residency on the long-term (i.e., the maybe never) agenda.

Is there a business case for ESG?

Do companies that ignore long-term environmental or social costs in the pursuit of near-term profits pay another price in foregoing potentially long-term sustainable profit opportunities? The Business Case for ESG, from the Rock Center for Corporate Governance at Stanford University, authored by Stanford academics and representatives of ValueAct Capital, considers a framework for incorporating sustainability or ESG (environmental, social and governance) factors into corporate strategy and decision-making.  The prevailing theory is that the failure to take sustainability into account is a component of short-termism, “leading to decisions that increase near-term reported profits at the expense of the long-term sustainability of those profits. The costs of those decisions are assumed to manifest themselves as externalities borne by members of the workforce or society at large.” The paper cites investors like Laurence Fink of BlackRock and innovative approaches like The New Paradigm as examples of efforts to encourage companies to take into account stakeholders other than solely shareholders. The paper suggests that, properly analyzed, sustainability can affect not only externalities, but can also benefit the business itself—there is a business case for ESG.