ESG issues are increasingly important to investors, resulting in a growth of ESG-branded investment products and an increased focus on ESG by public companies. The SEC brought several enforcement actions addressing ESG issues in fiscal year 2023 … including:
– Charges against a Deutsche Bank subsidiary for making materially misleading statements about its controls concerning ESG products. The firm marketed itself as a leader in ESG that adhered to specific policies for integrating ESG considerations into its investments, but it allegedly failed to adopt and implement policies and procedures reasonably designed to ensure that its public statements about the ESG integrated products were accurate. The firm agreed to pay a $19 million civil penalty to settle the charges;
– Charges against Goldman Sachs Asset Management, L.P. for policies and procedures failures involving two mutual funds and a separately managed account strategy marketed as ESG investments. To settle the charges, GSAM agreed to pay a $4 million penalty; and
– Charges against video game developer Activision Blizzard Inc. for failing to maintain disclosure controls and procedures to collect and analyze employee complaints of workplace misconduct. To settle the charges, as well as charges for violating the SEC’s whistleblower protection rule, Activision Blizzard agreed to pay a $35 million civil penalty.
The enforcement actions arguably are not ESG-specific (material misstatements, failures of policies, procedures and disclosure controls), but that is perhaps even more cause for concern. SEC is clearly looking at ESG through the long standing traditional securities regulations lens – no ESG-specific regulations are needed for regulatory action.
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