New legal analysis countering claims of anti-trust violations for climate-related investing | US SIF

Jenner & Block LLP legal memo finds no basis in law for attorney generals' and legislators' threats that shareholders acting to consider climate risk are violating either antitrust or fiduciary duty laws.

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Yesterday, US SIF, the Sustainable Investment Forum, and Sphere released an independent legal memo by Jenner & Block LLP, finding that investors or companies that make climate commitments or join efforts such as Climate Action 100+ and the Net Zero Asset Managers Initiative (NZAM), while making independent investment choices, are not violating fiduciary duty and are at negligible risk for anti-trust claims.

“This memo should quell investor uneasiness stoked by the uptick in politically charged threats focused on investor action to reduce climate risk. The Jenner memo supports other recent legal findings that the AG's allegations are an overreach at best and a misrepresentation of the law at worst, and that any attempt to bring actions on these theories would be unlikely to succeed.”

-Alex Wright-Gladstein, CEO of Sphere

The Jenner & Block LLP analysis specifically addresses a letter signed by 21 republican state attorneys generals (AGs) and issued to dozens of asset managers and asset owners, warning that consideration of climate factors risked fiduciary duty, antitrust, and securities laws.

The Jenner & Block LLP memo, like other legal memos from large law firms and academics, including Wilson Sonsini, found that investors' consideration of climate risk in the form of investment decision making, filing or voting for shareholder proposals, or collaborating with other investors is unlikely to violate anti-trust or fiduciary duty laws.

“These authoritative analyses should provide confidence to investors, asset managers, asset owners, companies, and other actors within the financial system who are facing highly politicized scrutiny because of climate considerations. This confirmation is much needed as shareholders face punitive backlash from red state legislators, the Republican Judicial Committee and companies like Exxon.”

-Lettini, CEO of US SIF

In its analysis, Jenner & Block LLP concludes that the legal theories in the AGs letter are unlikely to succeed in litigation. Rather, companies and investors responding to growing and material climate risk are not only acting responsibly but are equally or more likely to provide value to clients. The memorandum states

• It would be difficult to demonstrate that the commitments made by signatories to Climate Action 100+ rise to the level of an agreement, and second, even if the commitments could be considered an agreement, such an agreement is unlikely to produce anticompetitive effects.
• While the specific commitments required by NZAM are more strenuous, each signatory makes an independent decision to apply climate-related criteria in making investment decisions; it would thus be difficult to demonstrate a critical element of an anti-trust violation allegation.
• Shareholders have a legal right to engage with companies on issues of concern to shareholders and to vote on proposals submitted to proxies. The act of voting on a shareholder proposal does not constitute an agreement between competitors and thus the most basic element of an anti-trust case does not exist.

While the attorneys general and many red state legislators allege a violation of fiduciary responsibility for consideration of a range of climate and social factors, historically strong, long-term performance of climate-aware investing directly refutes this argument. Assessing the risks posed by climate change and the opportunities offered by the economic transition that is currently underway due to climate change helps asset managers manage financial risks and returns, which makes up the core of their fiduciary duty.

“This confirmation is much needed for shareholders who have faced punitive backlash from state policymakers. This is another instance of politicians inappropriately interfering with asset managers' fiduciary duty to evaluate risk and act in the best interest of investors. We are grateful for the thorough and detailed legal analysis by Jenner & Block.”

-Maria Lettini, CEO of US SIF

To read the full memorandum, click here.

Please note: the Jenner & Block LLP memorandum is not a legal opinion. Organizations should not rely on the memorandum but should get advice about their particular circumstances.

aboutUS SIF: The Sustainable Investment Forum is the preeminent voice advancing sustainable investing. Members, who represent $5 trillion in assets under management or advisement, support US SIF's mission is to rapidly shift investment practices toward sustainability, focusing on long-term investment, the generation of positive social and environmental impacts and supporting the shift toward a more resilient and equitable planet and society. https://www.ussif.org

US SIF is supported in its work by the US SIF Foundation, a 501(C)(3) organization that undertakes educational and research activities to advance the mission of US SIF, including offering trainings for advisors and other financial professionals on the Fundamentals of Sustainable and Impact Investment.