Underscoring the U.S. Securities and Exchange Commission’s (SEC) attention to environmental, social, and governance (ESG) disclosures, the SEC has charged Vale S.A., a publicly traded Brazilian mining company, with making false and misleading claims about the safety of its dams prior to the January 2019 collapse of its Brumadinho dam. This Legal Update highlights allegations
J. Paul Forrester
25 Associations Press US SEC for Longer Comment Periods, APA Compliance for Rulemakings
In an April 5, 2022 letter, 25 trade associations jointly criticized recent US Securities and Exchange Commission (SEC) rulemakings and requested that the SEC provide longer, more appropriate comment periods (and more meaningful opportunity for comment-making) for its “ambitious” regulatory agenda.
Noting over 50 substantive areas of current SEC rulemaking efforts and that many…
US SEC Includes “Greenwashing” in Its Examination Priorities for the First Time
In its 2022 Examination Priorities, issued on March 30, 2022, the Division of Examinations (“Division”) of the US Securities and Exchange Commission (“SEC” or “Commission”) uses the term “greenwashing” for the first time, as it outlined ESG as an area of continued focus for the Division.
Specifically, the Division stated that it will continue…
SEC Proposes Climate Change Disclosure Rules Applicable to Public Companies
On March 21, 2022, the US Securities and Exchange Commission (SEC) voted 3:1, with only Commissioner Hester Peirce dissenting, to propose long-awaited rules that, if adopted, would require extensive reporting by public companies of climate change-related disclosure and related attestation (the “Proposal”). Comments on the Proposal are due 30 days after publication in the Federal…
SEC Proposal Significantly Impacts Private Fund Advisers and Investors
On February 9, 2022, the US Securities and Exchange Commission (the “SEC”) voted to propose a suite of new rules and amendments (the “Proposal”) under the Investment Advisers Act of 1940, as amended. If adopted, the Proposal would significantly increase the compliance obligations of advisers to “private funds” and would fundamentally reorder the relative rights,…
The US Moving Toward Adopting New Climate Disclosures
On June 21, 2021, US financial regulators met with US President Joe Biden to discuss the US economy and update him on their efforts to address climate-related risks. According to the White House readout of the meeting, the regulators said “they were making steady progress” on implementing President Biden’s executive order on climate-related risk. The…
The New York LIBOR Legislative Solution Becomes Law
On April 7, 2021, the proposed New York “legislative solution” for legacy USD LIBOR contracts became Article 18-C of the New York General Obligations Law. Article 18-C is primarily aimed at USD LIBOR contracts, securities or instruments (e.g., floating rate notes (“FRNs”), loans, securitizations and mortgages) with the 2006 ISDA Definitions LIBOR fallbacks,…
SEC Announces the Creation of a Climate and ESG Task Force
The past few weeks have seen a flurry of ESG-related announcements coming from the SEC Acting Chair and staff. The most recent press release announced that the SEC has created a Climate and ESG Task Force in the Division of Enforcement:
[T]he Climate and ESG Task Force will develop initiatives to proactively identify ESG-related misconduct. …
SEC Acting Chair Directs Staff to Enhance Focus on Climate-Related Disclosure
On February 24, 2021, Acting Chair of the US Securities and Exchange Commission (“SEC”), Allison Herren Lee, announced that the agency will be focusing on public companies’ climate change disclosures as part of an effort to both assess current compliance with federal securities laws and develop new disclosure requirements for climate change. Specifically, she stated…
ICMA Issues Climate Transition Finance Handbook and FAQs
On December 9, 2020, the International Capital Market Association (ICMA) released its Climate Transition Finance Handbook (Handbook) and related Q&As to guide issuers in connection with the issuance of:
- “Use of proceeds” bonds, in line with the Green and Social Bond Principles or Sustainability Bond Guidelines; and
- General corporate purpose bonds, in line with
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