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Keeping you in-the-know on environmental, social and governance developments

We’ve written previously about the Australian Securities and Investment Commission’s (ASIC) enforcement actions against greenwashing in the financial sector, including a win against Vanguard Australia. ASIC secured another win against the fund Active Super which was found to be misrepresenting its ESG credentials. Net Zero Investor writes about the judgement:

“ASIC had been pursuing the case against Active Super since August 2023. The issue at hand was the environmental screening process that the fund’s website mentioned. When ASIC investigated the fund’s holdings between February 2021 and June 2023, it found exposure to companies in oil and gas as well as coal mining.

At the time, ASIC’s Deputy Chair Sarah Court said, ‘There is much competition among super funds for new members, and we know that funds seek to attract members with promises their investments will not be exposed to certain industries’. Ms. Court went on to stress that funds should not promise exclusions that they do not deliver on.”

Much of the case boiled down to Active Super’s “indirect holdings” in companies that are counter to the fund’s sustainability messaging. For example, if a fund holds shares in an index which itself holds shares in various companies, Active Super’s interest in the companies was considered an indirect holding. Active Super argued that a reasonable consumer would not expect that their sustainability messaging applied to indirect holdings. The court disagreed stating that “the distinction is one which no ordinary reasonable consumer would draw.”

Around the world, regulators are looking at sustainable funds with more skepticism and introducing new laws to specifically define what funds can and cannot do in their sustainable marketing. If other jurisdictions apply ASIC’s finding on index funds and indirect holdings, that could dramatically alter the investment, ESG and litigation risk landscape globally.

Our members can find more information on greenwashing enforcement here.

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The Editor

Zachary Barlow is a licensed attorney. He earned his JD from the University of Mississippi and has a bachelor’s in Public Policy Leadership. He practiced law at a mid-size firm and handled a wide variety of cases. During this time he assisted in overseeing compliance of a public entity and litigated contract disputes, gaining experience both in and outside of the courtroom. Zachary currently assists the editorial team by providing research and creating content on a spectrum of ESG… View Profile