Making Sense of Evolving Regulations, Recent Enforcement Efforts and Antitrust Claims as to ESG Investing in the U.S. and E.U. (Part One of Two)

Investor demand for products that consider environmental, social and governance (ESG) factors remains high and shows no sign of abating. As sponsors respond by launching more ESG products, regulators across the globe are concerned about managers using greenwashing to attract investors. Beyond just the promulgation of regulations, different enforcement efforts and private litigation measures are being used in each country to shape the operation, marketing and compliance efforts of ESG funds. Those shifting ESG dynamics were addressed in a recent webinar hosted by Finpublica that featured Moses Singer partner Howard Fischer; Adam J. Wasserman, executive director of Finpublica and managing member of August Way Law & Consulting; Morgan Lewis partner Lance C. Dial; Wilson Sonsini partner Jindrich Kloub; and Sheppard Mullin counsel Raymond Marshall. This first article in a two-part series examines the national ESG regulatory efforts in the U.S. and Europe; specific ESG enforcement matters in the U.S., select European countries and Australia; and how European investors are pursuing private litigation to shape ESG efforts in the region. The second article will evaluate the anti-ESG movement among U.S. states that is occurring via regulatory measures and state attorneys general letters; detail the contrasting approaches to ESG antitrust concerns in the U.S. and E.U.; and suggest risk mitigation techniques that fund managers can adopt. See “Legal and Compliance Challenges for Global Asset Managers From Disparate ESG Regulations in the U.S. and Europe” (Feb. 23, 2021).

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