Insights
The Attorneys General for both Indiana [1] and Louisiana [2] have issued opinions that environmental, social, and governance (ESG) criteria violate the fiduciary duty owed to corporate investors absent full disclosure of the use of ESG criteria. Both opinions rely on fiduciary duties arising from state and federal law regulating securities. Risk managers, attorneys and investors will be interested in the politicization of ESG investments as discussed below.
Indiana Attorney General Todd Rokita issued an 18-page opinion answering three questions:
Rokita’s answer to all three questions was a resounding “yes.”
These answers result in three clear takeaways for Indiana corporations:
There is a lot more to unpack in the 18-page opinion, but Attorney General Rokita has laid out a roadmap for potentially successful litigation against any investment manager who either is committed to any climate initiative or considers ESG data in the investment decision-making process.
Louisiana Attorney General Jeff Landry does not need as much ink to get to the same point. Louisiana securities laws control any registered dealer, a fiduciary under Louisiana law, who sells or offers to sell securities.
According to Attorney General Landry, Louisiana Revised Statute Title 51, Part X, Section 712 A(2), “unambiguously imposes a fiduciary duty to disclose (or to tell the whole truth) all material facts regarding the sale or attempted sale of any security.” He opines:
“[T]herefore, investment firms which operate as a registered investment advisor in Louisiana, and which utilize ESG factors or criteria without full disclosure to their investor-clients, are likely in violation of their fiduciary duties imposed by Louisiana law.”
In other words, the use of ESG is likely a violation of the duty of loyalty in that the ESG agenda has supplanted the investment manager’s duty to the client to obtain the best monetary result.
However, in the last paragraph of his opinion, Attorney General Landry attempts to moderate what would appear to be a harsh interpretation:
“I must note that this legal guidance should not be construed as concluding that the ESG agenda or the use of ESG criteria when selecting investments is inherently unlawful in any context [emphasis added]. Instead, it explains that where investment firms, such as the Big Three, utilize ESG without full disclosure, they are likely in violation of a Louisiana registered investment advisor’s fiduciary duties owed to investor-clients. It also illustrates how ESG has been exploited by the largest wealth management funds in our country at the expense of investors. As Attorney General, I encourage each of you to consider the aforementioned legal guidance when selecting investment firms to do business in the State of Louisiana.”
Landry’s commentary may contain the ultimate takeaway for states currently tackling the issue. Notably, several states have mandated various ESG criteria in investment decisions for state-related retirement funds. Investment decisions related to ESG are a political hot topic that will continue to draw attention from all levels of government, which may unintentionally create conflicts and litigation risk for investment managers.
We would like to thank John Peiserich for providing insight and expertise that greatly assisted this research.
John Peiserich is an Executive Vice President and Practice Lead in J.S. Held’s Environmental, Health & Safety practice. With over 30 years of experience, John provides consulting and expert services for heavy industry and law firms throughout the country with a focus on Oil & Gas, Energy, and Public Utilities, including serving as an expert witness in arbitration proceedings and in state and federal courts. He has extensive experience evaluating risk associated with potential and ongoing compliance obligations, developing strategies around those obligations, and working to implement a client-focused compliance strategy. Mr. Peiserich has appointments as an Independent Monitor through EPA’s Suspension and Debarment Program. John routinely supports clients in a forward-facing role for rulemaking and legislative issues involving energy, environmental, Oil & Gas, and related issues.
John can be reached at [email protected] or +1 504 360 8373.
Environmental, Social and Corporate Governance (“ESG”) data collecting and reporting are among the fastest changing, most highly watched, and most complicated corporate obligations today. Interestingly, in the United States, there is currently no specific SEC...
Former Securities and Exchange Commission (SEC) Commissioner Allison Herren Lee gave an incredibly insightful keynote address at the 2021 Society for Corporate Governance National Conference and spoke to the expanding responsibilities of boards with respect...
Right now, one big question for companies is, “How do you balance the demands of investors and consumers against the political backdrop both nationally and at the state level?” In one example at the national...