Blackburn, Cotton, Colleagues Warn Law Firms About ESG Initiatives
November 10, 2022
NASHVILLE, TENN. – U.S. Senators Marsha Blackburn (R-Tenn.) and Tom Cotton (R-Ark.), along with Senators Chuck Grassley (R-Iowa), Mike Lee (R-Utah), and Marco Rubio (R-Fla.), sent letters to 51 law firms detailing the possible antitrust violations that their clients may commit if they pursue collusive Environmental, Social, and Governance (ESG) initiatives. The letter advises the law firms to preserve documents relevant to their clients’ ESG practices in preparation for Congress’s oversight of ESG-related antitrust violations.
In part, the members wrote, “The ESG movement attempts to weaponize corporations to reshape society in ways that Americans would never endorse at the ballot box. Of particular concern is the collusive effort to restrict the supply of coal, oil, and gas, which is driving up energy costs across the globe and empowering America’s adversaries abroad.”
Full text of the letter may be found here and below.
We are writing about your firm’s Environmental, Social, and Governance (ESG) practice. Although businesses would certainly be wise to lawyer up before undertaking ESG initiatives, your firm has a duty to fully inform clients of the risks they incur by participating in climate cartels and other ill-advised ESG schemes.
During a recent Senate Judiciary Committee hearing, FTC Commissioner Lina Khan and Assistant Attorney General of the Antitrust Division Jonathan Kanter were asked to share their thoughts about ESG collusion. Commissioner Khan emphasized that there is no ESG exemption to antitrust laws. Regarding ESG group initiatives, she added, “Certainly, those types of cooperation or agreements, in as much as they can affect competition, are always relevant to” the FTC. Assistant AG Kanter emphasized his own agreement with “the sentiment that collusion is anticompetitive, and I also agree with the underlying sentiment that when firms have substantial power and they use that power to achieve anticompetitive ends, that should be actionable under the antitrust laws.”
The ESG movement attempts to weaponize corporations to reshape society in ways that Americans would never endorse at the ballot box. Of particular concern is the collusive effort to restrict the supply of coal, oil, and gas, which is driving up energy costs across the globe and empowering America’s adversaries abroad. Over the coming months and years, Congress will increasingly use its oversight powers to scrutinize the institutionalized antitrust violations being committed in the name of ESG, and refer those violations to the FTC and the Department of Justice. To the extent that your firm continues to advise clients regarding participation in ESG initiatives, both you and those clients should take care to preserve relevant documents in anticipation of those investigations.