ESG Securities Fraud

54 Pages Posted: 25 Apr 2023 Last revised: 3 Apr 2024

See all articles by James J. Park

James J. Park

University of California, Los Angeles (UCLA) - School of Law

Date Written: April 25, 2023

Abstract

As investors have become more concerned about the risk that corporate wrongdoing will impact a company’s stock price, the SEC and private plaintiffs are increasingly bringing cases alleging that a company misrepresented a risk relating to an Environmental, Social, and Governance (ESG) matter. The courts have been skeptical of such claims because of the perception that the scope of securities fraud liability would be too broad if it policed disclosure relating to the myriad of ESG risks facing public companies. They have thus often used the puffery doctrine to find that broadly worded statements concerning ESG risk are not misrepresentations.
This Article argues for a different focus in the evaluation of ESG securities fraud cases. The key question in such cases is whether the ESG risk at issue was sufficiently material so that the company’s disclosures that failed to acknowledge such risk were misleading. Courts should assess the materiality of ESG risk by applying the probability-magnitude test set forth by the Supreme Court in Basic v. Levinson. In doing so, they should consider facts relating to whether the probability of the risk at issue is subject to reasonable calculation or whether it is an uncertainty. Screening cases primarily based on the materiality of ESG risk would be a more effective way for courts to identify meritorious cases than rigid application of the amorphous puffery doctrine.

Keywords: securities regulation, securities enforcement, securities litigation, ESG

Suggested Citation

Park, James J., ESG Securities Fraud (April 25, 2023). 58 Wake Forest L. Rev. 1149 (2023), UCLA School of Law, Law-Econ Research Paper No. 23-02, Available at SSRN: https://ssrn.com/abstract=4428212

James J. Park (Contact Author)

University of California, Los Angeles (UCLA) - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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