Environmental, Social and Governance (ESG)

Our team is advising on some of the world’s largest carbon-credit transactions and deals across the compliance and voluntary environmental markets:

• Corporate ESG strategy and procurement support
• Fortune 500s/startups/MUSH
• Private equity funds and lenders
• Cleantech providers
• Project developers and service providers

The legal services we provide to sustainability/carbon programs include:

• Defining and managing chain of title to environmental attributes (EAs)
• Monetization of EAs, including environmental commodities and instruments, in the compliance and voluntary environmental markets
• Risk allocations and controls for EAs
• Protecting the integrity of EAs
• Managing compliance and voluntary environmental market interactions
• Addressing upstream/downstream treatment of EAs in supply chains
• Controlling EAs’ reporting rights and claims
• EA retirement and claim substantiation
• Compliance environmental market support for covered entities
• Energy and environmental market interactions
• Managing stacking of EAs for multiple goals and markets

Faegre Drinker serves as a trusted adviser to boards, board committees, members of senior management and in-house counsel on a full range of ESG matters, including:

• Advising and educating about fiduciary duties, trends, and developments in corporate governance practices and jurisprudence
• Addressing ESG-related shareholder activism
  • Responding to shareholder proposals
  • Proactively addressing investor expectations
  • Conducting vulnerability assessments
• Actively engaging in and contributing to external ESG-related forums
• Advising on required disclosures such as human capital disclosure, corporate governance practices and compensation matters in SEC filings
• Helping develop and implement governance structures and corporate policies
  • Revising committee charters and corporate governance guidelines
  • Implementing sustainability committees and incorporating
• Advising on shareholder engagement strategies, including related to institutional investor, proxy advisor, stock exchange and regulatory requirements/expectations and developments in third-party ESG ratings systems
• Advising on voluntary ESG disclosure in SEC filings, sustainability reports and websites; on developments in evolving standards for reporting frameworks; and on requests to sign on to high-profile ESG initiatives

We leverage our experienced team comprised of transactional, labor and employment, benefits, environmental and industry regulatory professionals to proactively evaluate and advise on ESG, corporate social responsibility (CSR), business and human rights, and supply chain compliance matters. Some of the areas on which we assist and advise include:

• Due diligence tailored to assess ESG and CSR considerations
• Risk and impact assessments, including those addressing governance; labor and employment; health and wellness; diversity, equity and inclusion (DEI); data privacy and security; and carbon and environmental programs
• Compliance with enacted, pending and proposed regulatory requirements, industry and NGO frameworks, guidance, and codes of conduct
• Supply-chain risks and management (including cross-border supply-chain matters)
• Review of compliance programs, policies and codes of conduct
• Contract terms and conditions (including sustainability-linked terms, governance, ESG oversight protocols, etc.)
• Public benefit corporations, benefit LLC and other social-impact structures
• Corporate philanthropy programs and structures
• ESG integration and post-closing ESG program implementation

We also represent the nonprofit B Lab, which is behind the B Corp Certification, including drafting the model benefit corporation legislation and individual state benefit corporation laws that have been adopted in more than 35 states.

Businesses increasingly face pressures from customers, employees, shareholders and governments to take positions on social, political and electoral issues. The speed and variety of the threats to businesses involve significant ESG considerations. Our Public Issues ESG team includes former elected and appointed officials and agency personnel who understand the intricacies of these issues – and that there is no one-size-fits-all approach. With government relations experience throughout the country, our team advises clients at the intersection of the private and public sector on political and policy issues related to ESG. These areas include:

• Traditional ESG and Zicklin Index
• Crisis Management/Corporate Communications
• Corporate Free Speech
• Corporate Political Giving, Campaign Finance and Compliance
• Corporate Lobbying
• Government Contracting
• Employee Speech/Mobilization Issues
• Shareholder Proposals
• Electoral Politics/Election Administration Participation
• Associational and Industry Coordination

With holistic renewable resource experience, we can support any project participant and counsel on the relevant legal and business issues.

• Sponsors and other equity providers
• Developers
• Investment bankers
• Senior and mezzanine lenders, including commercial banks, institutional investors and bond trustees
• Suppliers
• Offtakers

Consumers are increasingly conscious of how the products they buy impact the environment. Due to this heightened focus on environmental issues, consumer-facing companies frequently highlight the environmentally friendly attributes of their goods and services in advertising and on product labels. Unfortunately, leading companies are facing a wave of “greenwashing” class action lawsuits challenging these environmental claims. Companies are also facing a myriad of securities-related claims associated with their ESG representations and disclosures.

Faegre Drinker maintains a deep bench of attorneys focused on the defense of class actions and other forms of complex litigation. Our attorneys can help you defend and protect your business and brand from sophisticated disputes brought by the aggressive class action plaintiffs’ bar. Our class action team has a proven track record of successfully defending clients in hundreds of national and state class, collective and multi-plaintiff actions alleging consumer protection, false advertising, environmental and shareholder claims, among others.

For example, our team has the experience needed to assist and advise clients with:

• Defending clients in putative class action litigation alleging consumer fraud and related claims arising from purportedly false or misleading environmental statements in a company’s marketing, advertising or product labels
• Defending clients in securities litigation related to or arising from ESG issues
• Defending clients in government investigations as well as formal litigation against government agencies, including the FTC, SEC and state attorneys general
• Responding to consumer complaints and litigation threat letters to reduce the risk or likelihood of future litigation
• Providing litigation-focused compliance advice on the FTC’s Green Guides and related international standards
• Providing litigation-focused reviews of company policies, practices and programs to identify and remediate any potential risks associated with the company’s public environmental claims
• Analyzing environmental claims presented in a client’s marketing, advertising or product labels to assess whether certain claims have been challenged in litigation as well as the outcome of any such litigation

Working with Faegre Drinker means drawing on our wide array of resources to further your environmental, social and governance (ESG) goals. Further, we understand the needs of company-affiliated charities. As legal counsel to more than 50 company-affiliated charities — including some of the largest company foundations in the United States — we are well acquainted with the benefits that these corporate giving and community support programs provide and the sometimes-complex compliance mechanisms that the companies and their foundations must navigate to retain their tax-exempt status. We regularly advise companies and their affiliated corporate foundations on matters that include:

• Foundation governance and tax compliance
• Excise taxes limiting transactions between the company and the foundation
• Foundation and company grantmaking to individuals and organizations
• Impact investments and related policies
• Naming rights and other recognition benefits
• Matching grant programs based on employee contributions and volunteer hours
• Charitable employee assistance programs
• Training for company and foundation staff
• Employee fundraising initiatives
• Commercial Co-Ventures and other charitable sales promotions
• International grantmaking compliance
• Employee and community scholarship programs
• Diversity, equity and inclusion initiatives

Our ESG attorneys work with subject matter authorities across Faegre Drinker’s network to understand your business, evaluate and advise on ESG and CSR, bring fresh ideas, and create lasting value. The team is immersed in the following key practice areas and industry teams:

• Environment & Energy
• Securities, Governance & Capital Markets
• Corporate and Mergers & Acquisitions
• Investment Management
• Litigation
• Labor & Employment
• Nonprofit Organizations
• International Team
• Customs & International Trade
• Best Interest Compliance
• Benefits & Executive Compensation
• Financial Services
• Consumer Products & Retail
• Food & Agribusiness
• Health & Life Sciences
• Insurance