Increased Greenwashing Litigation and ESG Claims Backlash: Regulatory Update, Recent Class Actions, Mitigating Risk
Course Details
- smart_display Format
On-Demand
- signal_cellular_alt Difficulty Level
Intermediate
- work Practice Area
Environmental
- event Date
Tuesday, November 7, 2023
- schedule Time
1:00 p.m. ET./10:00 a.m. PT
- timer Program Length
90 minutes
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This 90-minute webinar is eligible in most states for 1.5 CLE credits.
This CLE webinar will discuss the status of federal and state greenwashing regulations, including an update on FTC and SEC regulation and enforcement as well as private litigation activity. The panelists will describe recent noteworthy greenwashing class actions along with considerations for defending these claims. The panel will also provide best practices for counsel in advising their clients on how to minimize risk when making sustainability claims in their ESG reporting and marketing materials.
Mr. Solorzano’s practice focuses on advising public and private companies and their boards of directors and executive teams on matters and opportunities related to ESG, corporate governance, sustainability considerations, shareholder activism, risk management, securities law, and M&A. As Senior Director, Legal and Corporate Development for The Clorox Company from 2015 through 2022, he helped build and manage a comprehensive ESG program and helped lead the company’s ESG strategy, stakeholder engagement and ESG reporting. He also helped establish and execute strategies around climate change, plastics and waste, supply chain transparency and diversity and inclusion. Mr. Solorzano advises clients, including public companies, on securities disclosure, corporate governance and compliance matters. He plays a strategic role in advising clients on a broad range of ESG issues and related risks, including the development of sustainability reporting, corporate ESG programs and governance oversight, and the establishment of greenhouse gas emissions reductions targets, plastics and waste goals, product safety and stewardship principles, and diversity and inclusion priorities.
Mr. Kriha advises clients on a wide variety of energy and decarbonization matters. He helps clients navigate the quickly changing decarbonization landscape by utilizing his legal and engineering experience to develop comprehensive strategies to reduce greenhouse gas emissions that leverage government support and comply with climate regulations. He advises clients on issues related to compliance carbon markets, including the Renewable Fuel Standard, state low carbon fuel standards, and state and regional cap-and-trade programs. Mr. Kriha also advises clients on participation in voluntary greenhouse gas offset markets, including by helping clients generate or purchase high-quality offsets that represent actual emissions reductions. He advises clients on matters related to new and emerging voluntary low-carbon products such as responsibly sourced gas. He aids clients in achieving net-zero emissions and carbon-neutrality goals by identifying and helping utilize applicable government programs and incentives as well as by developing strategies to minimize uncertainty and mitigate greenwashing risks. Mr. Kriha is a founding member of the firm’s Greenwashing Mitigation Team.
Mr. Cole is a nationally recognized litigator who offers strategic counsel to some of the world’s leading companies on protecting their technology and brands from attack by competitors, regulators and private consumer class action claimants. With a practice that covers a wide range of industries and sectors, Mr. Cole brings a practical, creative and individualized approach in advising clients on how to navigate advertising, unfair competition, brand disparagement, reputation and intellectual property matters. He is well-known for helping companies understand their obligations regarding advertising of ESG-related claims, including claims about carbon offset, waste reduction and recycling, and social issues.
Greenwashing litigation is significantly on the rise where plaintiffs are trying to hold companies accountable for their sustainability claims in advertising as well as in non-traditional marketing materials like corporate ESG reports, often through class actions, where these ESG claims are purported to be overstated, misleading, or false and unsubstantiated. For example, a recent class action filed against Delta Airlines is among the first major consumer cases targeting an airline's claims of carbon neutrality and is premised on the alleged overstated validity of carbon offset credits.
Federal and state regulators are also focused on greenwashing. In an effort to provide more guidance on how to engage in effective and compliant green marketing, the FTC is in the process of updating its Green Guides which have not been updated since 2012. The Green Guides provide guidance to companies making environmental marketing claims, including how consumers may interpret their claims and how those claims may be substantiated. While updating the Guides, the FTC continues enforcement actions against companies for greenwashing. Furthermore, many states premise their own fair advertising statutes on the Green Guides, making the revisions highly relevant in cases brought at the state level by litigants.
The SEC has also proposed new rules that will require publicly traded companies to include certain climate-related disclosures in their public filings and require investment advisers and funds associated with ESG to disclose how they pursue ESG strategies in their investments. These changes, along with elevated demand for sustainability performance from both consumers and shareholders, will lead to more reporting on sustainability matters but also heightened risk of overstatement of decarbonization and other corporate and investor ESG performance.
Listen as our expert panel discusses the status of federal and state greenwashing regulation and enforcement. The panel will address noteworthy greenwashing litigation and considerations for defending these claims. The panel will also provide best practices for minimizing risk while making ESG claims in advertising as well as corporate reporting.
- Greenwashing overview
- Stakeholder demand for ESG performance and resulting corporate claims
- Status of federal and state regulation
- FTC
- Green Guides update
- FTC enforcement action
- SEC
- Proposed climate disclosure rules
- SEC enforcement action
- Notable state regulation and enforcement activity
- FTC
- Class action litigation
- Berrin v. Delta Airlines Inc.
- Other noteworthy recent caselaw
- Defense takeaways
- Best practices for making ESG claims and minimizing risk
The panel will review these and other important considerations:
- What is greenwashing and what types of marketing claims increase the risk of being targeted for enforcement activity or lawsuits?
- How have federal and state governments stepped up their greenwashing enforcement activity?
- What can counsel learn from recent class actions?
- What considerations should counsel and their clients be aware of when making ESG claims in marketing and voluntary and mandatory reporting?
- When can counsel and their clients expect the FTC's final Green Guides revisions and the SEC's final climate-related disclosure rules?
