ESG

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On December 4, 2023, the Commodity Futures Trading Commission (“CFTC”) issued for public comment proposed guidance regarding the listing by designated contract markets (“DCMs”) of voluntary carbon credit (“VCC”) derivative contracts (the “Proposed Guidance”).  Continue Reading CFTC Publishes Proposed Guidance on Futures Exchanges’ Listings of Voluntary Carbon Credits and What this Means in the Context of Other Developments in this Market

Companies face new pressures relating to the potential environmental impact of their products and services. In recent years, ESG has become a focal point about how companies conduct their business and there has been an increase in pledges to reduce greenhouse gas emissions, marketing of environmentally friendly products and reporting on environmental, social and corporate…

On May 25, 2022, the U.S. Securities and Exchange Commission (“SEC”) proposed amendments to rules and related reporting forms under the Investment Advisers Act of 1940 (the “Advisers Act”) and the Investment Company Act of 1940 (the “Investment Company Act”) that are ostensibly intended to provide additional transparency regarding the use of environmental, social, and governance (“ESG”) factors by investment advisers and investment companies (the “Proposal,” available here), but which will also give SEC Examination and Enforcement staff additional tools to track and target advisers and funds pursuing an ESG strategy.
Continue Reading New ESG Rule Proposal Raises the Stakes under SEC’s New Marketing Rule

On May 23, 2022, the Securities and Exchange Commission (“SEC”) announced the inaugural enforcement action against an investment adviser by its much hyped ESG Task Force.[1]  As expected, this case does not find fault with the concept of ESG or conduct suggesting actual wrongdoing.  Instead, consistent with bread and butter policy for the SEC’s Enforcement Division, the SEC charged BNY Mellon Investment Advisers (“BNYMIA”) for failing to act consistently with its ESG disclosures to investors and having inadequate policies and procedures to prevent the misleading disclosures.  While the penalty of $1.5 million could be seen as small for this SEC, BNYMIA was charged with negligent fraud under Section 206(2), Section 206(4) and Rule 206(4)-8 under the Advisers Act, in addition to compliance violations.
Continue Reading SEC’s ESG Task Force Comes Out Swinging with Inaugural Enforcement Action Ahead of New ESG Disclosure Rules

On March 30, 2022, the U.S. Securities and Exchange Commission (“SEC”) Division of Examinations (the “Division”)—formerly the Office of Compliance Inspections and Examinations—released its 2022 Examination Priorities (“2022 Priorities”).  The Division is undergoing extensive leadership changes, with the recent departures of several top officials.  Consistent with the aggressive agenda set by Chair Gensler for the SEC generally, the Division has returned to its pre-pandemic caseload, conducting over 3,000 exams in fiscal year 2021, issuing over 2,000 deficiency letters, and making 190 referrals to the Enforcement Division.  Despite the management changes, the 2022 Priorities generally retain perennial risk areas as the core focus, but include several new and emerging risk areas reflecting the policy goals espoused by Gensler in recent proposed rule releases and public statements.
Continue Reading SEC Division of Examinations Reinforces Gensler Initiatives in its 2022 Exam Priorities

2021 was a year of transition for white-collar criminal and regulatory enforcement. As courthouses reopened and trials resumed, newly-installed heads of law enforcement authorities looked to reset priorities and ramp up enforcement in the first year of the Biden administration. …
Continue Reading Priorities, Trends and Developments in Enforcement and Compliance