Environmental, Social and Governance (ESG) has advanced from an aspiration to a crucial component of businesses wanting to stay competitive and resilient.

Leveraging the depth of Shook’s multidisciplinary capabilities, the firm’s Environmental, Social and Governance Practice helps clients devise creative solutions to address emerging risks and potential litigation in evolving areas such as climate-related lawsuits, labeling issues, supply-chain concerns and securities litigation stemming from statements regarding a company’s ESG representations, as well as issues surrounding diversity, equity and inclusion. From the early stages of crafting an ESG policy and implementing a cross-functional program, to resolving ESG-related claims through negotiation, arbitration or lawsuit defense, Shook attorneys build on decades of experience and are positioned to provide end-to-end support.

Key areas of our practice include:

Environmental

  • Defending against citizen group and government enforcement actions under federal and state environmental statutes, including the Clean Air Act, Clean Water Act, CERCLA and RCRA
  • Litigating environmental enforcement matters in state and federal court as well as with the Environmental Protection Agency (EPA), Department of Justice (DOJ) and state agencies
  • Providing advice on environmental issues in corporate transactions, including resolution of liabilities prior to closing; responding to due diligence inquiries; providing options for retention or transfer of liabilities through various insurance programs and third-party remedial companies; transferring permits; and preparation of environmental representation, warranty and indemnity language
  • Constitutional arguments, including takings, due process and fair notice
  • Advising on energy savings claims and potential issues related to emission levels

Labeling

  • Resolving claims alleging improper product labeling (including claims related to recyclability or sustainability) before the filing of a lawsuit
  • Defending and dismissing numerous consumer product class actions, particularly lawsuits involving plaintiff-product-testing, “all natural” ingredients, labeling, animal welfare, “Made in the USA”, and slack-fill claims
  • ESG claim substantiation stemming from public comments and social media campaigns
  • Advising on claims based on Federal Trade Commission (FTC) “Green Guides”
  • Advising on California-specific regulations
  • Assisting companies with creating internal compliance programs and marketing materials in anticipation of government regulation of a specific product
  • Analyzing proposed imagery related to certain products and implied claims

Supply-Chain

  • Drafting supply agreements and quality control for supply manufacturers
  • Reviewing and counseling on training programs and training materials for suppliers
  • Conducting due diligence reviews in company sales and acquisitions, including assessing suppliers and supply-chain issues
  • Auditing and enforcing supplier code of conduct

Regulatory Compliance

  • Assisting clients with regulatory compliance stemming from SEC, FTC, IRS, Foreign Corrupt Practices Act (FCPA), and False Claims Act (FCA) rules and regulations
  • Responding to DOJ subpoenas and requests for information
  • Assisting with import/export disputes

Corporate Governance and Investigations

  • Advising leadership on implementing an ESG program in accordance with regulatory requirements and industry standards
  • Investigating allegations of board misconduct and workplace misbehavior
  • Representing companies in governmental investigations
  • Assisting with whistleblower investigations and claims made through employee or consumer hotlines
  • Educating company officers, executives and employees about their rights and responsibilities when confronted with an investigation

Diversity, Equity and Inclusion Counseling

  • Developing appropriate corporate culture programs and company code of conduct
  • Conducting diversity, equity and inclusion consulting and training for companies
  • Advising on board diversity goals and metrics
  • Resolving executive disputes, including confidential matters as well as high-profile cases
  • Implementing equal pay initiatives
  • Advising on sector-specific “best practices”
  • Resolving and defending discrimination allegations based on race, ethnicity, gender and/or sexual orientation and harassment or workplace behavior that is alleged to be non-inclusive

Securities Litigation

  • Defending and prosecuting securities cases arising out of initial public offerings, financial restatements, mergers and acquisitions, and other transactions
  • Litigating cases based on alleged violations of federal securities and/or state fraud laws, as well as derivative actions and shareholder disputes
  • Counseling clients on “insider trading” cases
  • Assisting clients with internal investigations, including stock-option backdating
  • Appealing unfavorable decisions and litigating cases on appeal
  • Representing registered representatives, brokers, financial planners and investors in securities arbitrations before the Financial Industry Regulatory Authority (FINRA)
  • Serving as liaison, local or trial counsel in partnership with other law firms

Data Privacy

  • Assessing privacy and data security liability risks
  • Defending privacy and data security class actions
  • Auditing companies’ privacy and data security systems
  • Incident preparation and response, including legal obligations to notify affected consumers, business partners and regulators
  • Building global biometric technology programs in compliance with the General Data Protection Regulation (GDPR)
  • Negotiating business associate agreements
  • Drafting internal and consumer-facing privacy policies and notices, and conducting employee training on same

Public Policy

  • Engaging with trade associations to achieve policy goals
  • Submitting amicus briefs in high-stakes, high-publicity litigation
  • Assisting clients on issues relating to public affairs and public relations
  • Tracking legislative developments and ongoing lawsuits (including multinational litigation) in industries that may affect current clients and assisting with developing or pivoting strategies in response to same
  • Improving the litigation climate through an integrated approach that includes judicial education and scholarship, legislative affairs and media relations

 

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