ARTICLE
17 August 2022

ESG Considerations For Public Companies

GP
Goodwin Procter LLP

Contributor

At Goodwin, we partner with our clients to practice law with integrity, ingenuity, agility, and ambition. Our 1,600 lawyers across the United States, Europe, and Asia excel at complex transactions, high-stakes litigation and world-class advisory services in the technology, life sciences, real estate, private equity, and financial industries. Our unique combination of deep experience serving both the innovators and investors in a rapidly changing, technology-driven economy sets us apart.
Environmental, Social, and Governance (ESG) issues continue to be top of mind for public companies. Some companies are just starting their ESG journey while others are working towards...
United States Corporate/Commercial Law

ESG Overview - What is ESG?

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  • Environmental, social, and governance factors help investors measure the sustainability and social impact of a business
  • ESG is being used as a measure to predict a company's future financial performance
    • "Doing good while doing well": a higher ESG score has been linked to profitability
  • Asset managers are increasingly focused on ESG, which has become an important factor in their investment decisions
  • Companies are increasingly providing disclosure of ESG metrics

ESG Overview - Breaking Down ESG

Environmental:

  • What impact (positive or negative) does the Company have on the environment?
  • Considerations include environmental risks and opportunities, reducing the Company's and its partners' carbon footprint, greenhouse gas emissions and clean energy

Social:

  • What impact does the Company have on the company's stakeholders and society generally?
  • Considerations include labor relations, human rights, safety, product integrity and employee morale & turnover

Corporate Governance:

  • How is the company run?
  • Considerations include diversity, board independence, executive compensation, and policies for reporting & disclosing information

Who is Driving the Emphasis on ESG?

  • Large investors, such as BlackRock and State Street
  • Directors – want their companies to be identified as leaders in this area
  • Business customers (particularly in Europe) increasingly link purchasing decisions to ESG matters
  • Business customers (particularly in Europe) increasingly link purchasing decisions to ESG matters
  • " Employees – in technology and other areas, employees are feeling increasingly empowered to insist that their companies pursue and achieve ESG; this, in turn, becomes an employee retention and attraction matter
  • Government regulators – both in the EU and the SEC in the United States

Notable Aspects of the Current ESG Landscape

  • Companies find themselves forced to expend dedicated resources to address a proliferation of ESG assessments, issued by organizations such as SASB, GRI and TCFD
    • Driven by customer requirements and public perception goals
  • Companies are increasingly including ESG factors in their executive compensation programs to incentivize the achievement of ESG goals and manage ESG risks
    • Compensation Committees wanting to drive ESG-centric behavior
  • Companies continue to issue green bonds and other sustainable finance bonds ($417.8 billion issued in first half of 2022 according to Climate Bonds Initiative)
    • There is a growing desire for these types of investments among individuals and some institutional investors

Notable Aspects of the Current ESG Landscape (cont.)

  • The amount of ESG-related litigation has increased and continues to grow
    • In particular, there has been a rise in the number of suits "alleging greenwashing" – where plaintiffs allege that companies have made misrepresentations about their environmental practices, achievements and commitments
  • ESG-driven activist campaigns
    • Climate-focused activist shareholder won three seats on ExxonMobil's board in a proxy fight using ESG themes to argue for needed changes in board composition (2021)
    • More traditional activists have been raising ESG issues as a platform to gain support for campaigns

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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