This 90-minute CLE webinar will discuss defense strategies in class actions and litigation related to environmental, social, and governance (ESG) representations regarding climate change, greenwashing, and social diversity. The program will discuss unique issues concerning standing, discovery, pre-certification practice, and Rule 23 requirements when litigation is based on alleged discrepancies between what companies have published on social media and in public relations campaigns about their "corporate sustainability," "corporate and social responsibility," "climate change" action, or similar topics and their actual practice in those areas.
Company practices that fall short of ESG messaging and aspirations are driving consumers and investors to file class actions alleging fraud, securities violations, false advertising, and other similar claims. Investors are being told that both their fiduciary duties and sound business judgment require them to file securities class action cases to recover losses incurred from alleged incongruent or unfulfilled ESG promises. Gaps between ESG messaging and ESG performance are being actively touted as "asset recovery opportunities" by investors and litigation funding groups.
Historically effective class action strategies may no longer achieve the expected results in ESG-based litigation after recent Supreme Court decisions, including Goldman Sachs Grp. Inc. v. Arkansas Teacher Retirement Sys., 141 S. Ct. 1951 (June 21, 2021), and Transunion v. Ramirez, 141 S. Ct. 2190 (June 25, 2021).
Counsel must reevaluate pre-certification motion practice. Motions to strike class allegations may be more effective when claims are based on some types of ESG messages than others. The need to establish an injury in fact may enable defendants to defeat certification on predominance grounds more easily in ESG cases. If price impact and materiality must, as a practical matter, be litigated at certification, bifurcated discovery may no longer be a cost savings device.
Listen as this experienced panel of class-action lawyers discusses defense strategies in class actions and litigation related to ESG representations regarding climate change, greenwashing, and social diversity.
Outline
I. ESG messaging: aspirations vs. reality
II. Pre-certification strategies
A. Climate change messaging
B. Greenwashing
C. Social diversity
III. Continued attractiveness of bifurcated discovery
A. Climate change messaging
B. Greenwashing
C. Social diversity
IV. Establishing standing
A. Climate change messaging
B. Greenwashing
C. Social diversity
Benefits
The panel will review these and other key issues:
- Are marketing and growth strategies based on ESG on a collision course with ESG litigation?
- Do investors have a fiduciary obligation to sue companies if they do not meet their own ESG standards?
- Do ESG standards exist?
- What disclosures about ESG do public companies need to make?