Fund managers that market and operate private funds across the globe are accustomed to navigating the disparate marketing and compliance regulations of different countries. That experience is proving invaluable for managers with funds that focus on environmental, social and governance (ESG) investing given the complex dynamics in the U.S. amidst the rising anti-ESG movement promulgated by conservative states and the decidedly favorable attitudes toward ESG investing in Europe. The difficulties of parsing those differences were addressed in a recent webinar hosted by Finpublica that featured 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 second article in a two-part series evaluates the anti-ESG movement among U.S. states that is occurring via regulatory measures and state attorneys general (AG) letters; details the contrasting approach to ESG antitrust concerns in the U.S. and E.U.; and suggests risk mitigation techniques that fund managers can adopt. The first article
examined 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. For additional insights from Dial, see our two-part series on the SEC’s proposed ESG rules: “Nuanced Concerns About Three ESG Categories and Other Form ADV Requirements
” (Aug. 23, 2022); and “Forecasting the Private Fund Industry’s Response and Offering Compliance Tips
” (Aug. 30, 2022).