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Analysis ESG Agenda May Lead The SEC Down Long, Litigious Path

March 12, 2021, Law360

David Kornblau is quoted in Law360 regarding the SEC’s new ESG enforcement task force. Mr. Kornblau says operating through existing anti-fraud laws, the task force could ramp up enforcement actions against companies, but that could also bring a wave of litigation. “Until the agency adopts new climate disclosure regulations, for enforcement purposes it will need to rely on its general anti-fraud authority. So they would be looking for disclosures by public companies that they think either misstated or omitted material facts relating to climate risk,” he adds.

In order to “be able to declare [the task force] a success,” the SEC could bring cases that are “more marginal, more aggressive” while potentially demanding higher penalties from companies, which could incentivize the companies to litigate rather than settle, he says. “If they're litigated, then the courts are going to have the final say rather than the SEC.”

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