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US SIF and Sphere release new legal analysis that counters claims of anti-trust violations for climate-related investing

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

By

May 22, 2024

MEDIA CONTACT:

Talia Dunyak

+1 414-376-7934

ussif@lowecom.com

WASHINGTON, D.C., May 22, 2024—US SIF: The Sustainable Investment Forum and Sphere today 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) 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,” said Alex Wright-Gladstein, CEO of Sphere. “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.”

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, including a from 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,” said Maria Lettini, CEO of US SIF. “This confirmation is much needed as shareholders face punitive backlash from red state legislators, the Republican Judicial Committee and companies like Exxon.” 

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, historical, 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,” said Lettini. “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.” 

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 obtain advice about their particular circumstances.

About US SIF and the US SIF Foundation 

US 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. 

About Sphere

Sphere is a registered public benefit corporation that makes it easy for every employer to offer climate-friendly investment options in their retirement plans. The company offers climate-friendly financial products that are designed for 401(k)s, allowing retirement plan managers to maintain their commitment to fiduciary duty without having to compromise on climate. Learn more at www.oursphere.org. For more information reach out to hello@oursphere.org. ‍

Read the Memo

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