Businesses are integrating environmental, social, and corporate governance (ESG) considerations into all facets of their operations. As this area grows in significance and impact, our clients partner with our ESG team for multidisciplinary and tailored advice, in-depth policy understanding, and sound commercial judgment.
Our diverse team, integrating multiple practice areas, has a track record of acting as trusted advisers to public and private companies and their boards, board committees, members of senior management, and in-house counsel across a range of business sectors.
Clients turn to us for guidance, strategies, and counsel in a number of ESG-related areas, including socially conscious investing, environmental disputes, sustainability, workplace safety, diversity, workforce strategies and corporate culture and responsibility, corporate governance, internal investigations, cybersecurity, crisis and reputational risk management, foreign and domestic trade practices, human rights, and ethics.
Our team includes:
- A former special counsel at the SEC’s Division of Corporation Finance responsible for overseeing, monitoring, and enhancing compliance with disclosure and accounting requirements for all public health care and insurance companies;
- A former supervisor of a DOJ international crime strike force responsible for overseeing investigations and enforcement actions involving foreign corruption, international money laundering, cyber fraud, and crimes impacting the environment;
- Former U.S. attorneys and assistant U.S. attorneys; and
- The former chief privacy officer of a national law firm with extensive experience managing compliance with information privacy laws and regulations, as well as determining how firm and client data should be collected, used, stored, and destroyed.
Environmental
Our environmental team routinely counsels clients on ESG issues arising in their ongoing business activities, as well as their relationships with third parties.
This work frequently goes beyond standard environmental permitting and compliance issues. As an example, we work with clients to ensure that product labeling and warnings comply with product stewardship requirements, such as California’s Proposition 65 and the European Union’s Registration, Evaluation, Authorization and Restriction of Chemicals (“REACH”) regulation. Clients also work with us to consider representations made by supply chain vendors and to review their activities.
The team regularly plays an integral role in merger and acquisitions, assessing the ESG policy, targets, metrics and commitments of the acquisition target company. We support the due diligence needed to identify potential environmental liabilities that may arise in the course of complex business transactions and offer creative solutions for allocating potential risk or liability as an integrated part of the overall deal strategy.
We counsel clients on a variety of compliance requirements under local, state and federal environmental statutes and regulations. Our focus is to help clients meet their business goals while navigating an increasingly complex regulatory environment. Clients also turn to us to review environmental Best Management Plans and Practices to ensure they are meeting regulatory requirements.
We defend clients against federal and state agency enforcement as well as citizen suits under the Clean Water Act, Clean Air Act and other major federal statutes. We also represent clients in cases involving injuries allegedly caused by exposures to chemicals and other toxins as well as mold-related toxic tort actions against property owners, contractors and manufacturers.
Our attorneys are experienced in advising companies of all sizes on potential federal and state legal issues arising from accidental releases at industrial facilities. We assist clients with due diligence associated with historical and current contamination, including satisfying the all appropriate inquiry standard and the preparation of Phase 1 and Phase 2 site assessments in advance of the purchase or sale of real property; reviewing legal options and funding opportunities available under federal and state law to remediate localized contamination of soil or groundwater; handing natural resource damage claims; and navigating the redevelopment of contaminated brownfield properties.
Our attorneys understand the challenges in complying with all of the regulatory requirements affecting a business and provide clients detailed counsel on product stewardship. This includes helping clients foresee regulatory issues with new products being developed; advising on responses to customers’ requests for information about constituents affected by a client’s product; helping clients recognize laws and regulations impacting how products can be advertised or marketed; and providing legal advice following the issuance of a cease and desist order or other citation. We also counsel clients on end-of-life disposal practices, including the disposal of packaging, waste, by-products from manufacturing, and recycling/biodegradation.
As a final example of the range of our work in this area, our team has also investigated and successfully defended Resource Conservation and Recovery Act (RCRA) and False Claims Act litigation brought by the Department of Justice (DOJ). The litigation centered on the study and remediation of groundwater contamination at a Department of Energy (DOE) facility on the National Priorities List (NPL). Showing that other DOE sites had taken a similar approach to waste management and that DOJ’s interpretation of RCRA would hinder cleanup efforts at Superfund sites across the country, was an instrumental factor in the successful defense of this matter.
Social
Businesses are seeing a greater demand for employer transparency on ESG issues. We conduct assessments of workplace structures through an equity lens and consult on strategic initiatives to foster equitable and inclusive corporate cultures, structures, and leaders, and sustainable change management. We ensure that workplace policies and procedures are consistent with stated values of our clients’ businesses, drive high employee engagement and contribute to sustainable, long term success.
Clients in multiple sectors turn to our team to conduct training, workshops, lectures, and keynote addresses on diversity and inclusion, race, gender and structural equity, social justice, implicit bias, inclusive artificial intelligence, neurodiversity, inclusive and agile leadership, cultural competence, emotional intelligence and the multigenerational workplace, among other topics. We also provide our clients with legal counsel to help them to navigate crises and issues as they arise, both internally and externally.
Our team also has experience forming benefit corporations, obtaining certification for B Corps, and providing legal counsel to both benefit corporations and B Corps with respect to the ordinary course and episodic legal matters that arise for any for-profit business. We understand the unique needs of benefit corporations and B Corps, given their desire to differentiate themselves from their peers.
Governance
Boards and committees work with us on a range of governance issues, including in highly-regulated industries with specific rules such as HIPAA, GLBA, NERC, CIP, and FERPA, among others.
We advise on board structure and governance policies and procedures to carefully balance ethical issues and manage conflicts of interest. We review and revise annual corporate ESG reports, prepare annual proxy statements with stretch goal proposed ESG disclosures, and provide governance and operational guidance ranging from writing policies to conducting comprehensive legal audits. We are also familiar with ESG reporting and disclosure requirements.
Cybersecurity and privacy risks are top of mind for many clients. We counsel companies and boards regarding their board and fiduciary duties related to cybersecurity and data privacy and work closely with clients on operational business matters, such as drafting and negotiating technology contracts, advising on product/service development, assisting with vendor management, and advising on cybersecurity and privacy risks in M&A transactions. Clients also turn to us for immediate guidance in the event of a data breach, and we assist with investigations, risk management, and notification obligations.
We design Board and Committee Charters to allocate ESG responsibilities, ensure coverage, avoid duplication, and prepare and conduct board and committee self-assessments. We also manage board and committee performance against board and committee charters, calendars, and agendas to ensure compliance with legal and governance requirements. As part of our work, we benchmark Peer Proxy Statements, Board and Committee Charters, and Corporate Governance Guidelines against developing ESG compliance metrics.
We also counsel clients on orientation, training, and development of board members, providing them with an understanding of everything from strategic plans and key business drivers to risk management.
Where necessary, clients ask for our assistance to conduct internal investigations, and our team has successfully handled:
- Allegations company performance metrics were manipulated to increase executive incentive compensation;
- Investigations into compliance with U.S. legal and regulatory obligations related to foreign commerce, including Foreign Corrupt Practices Act investigations relating to alleged bribery in Europe, South America, and Asia, and international trade compliance investigations related to forced labor in foreign supply chains involving the Xinjiang Uighur region of China;
- An internal investigation for a financial institution resulting in the successful remediation of issues involving consumer loans and credit reporting; and
- Data breach situations (and close calls) and assisted with investigations, risk management, and notification obligations.
We also advise government contractors on the requirements of the Office of Federal Contract Compliance Program and prepare compliant affirmative action plans.
Finally, we provide clients with litigation and regulatory enforcement defense capabilities regardless of the scope or complexity of the matter.