By Joel Mitnick, Partner, Cadwalader
Recently, there have been rumblings of antitrust enforcement in response to the increasing prominence of corporate policies furthering environmental, social, and governance (‘ESG’) goals.
The ESG moniker has been used as shorthand for a broad range of initiatives by private actors, including collaborative efforts to issue industry-wide “best practices,” adherence to environmentally conscious production processes, and commitments to sustainable investing.
Despite the arguably laudable objectives of the ESG movement, there are indications that multi-firm ESG initiatives have fallen in the crosshairs of antitrust enforcers. Most notably, elected representatives of U.S. oil and gas constituents have threatened antitrust liability against financial institutions that have adopted lending or investing policies aimed at climate change, particularly those favoring net-zero growth for carbon emissions.
This article traces the growing likelihood of antitrust challenges to ESG policies and explains why the threat of enforcement actions does not necessarily equate to an increased risk of liability. We also discuss how firms can mitigate their exposure to potential antitrust liability by refraining from forms of concerted conduct that have been deemed per se unlawful under antitrust law, and identify which types of coordinated activity are typically permitted where reasonable safeguards to competition exist.
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