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51 US BigLaw firms receive threatening letter from Republican senators about ESG advice
Heads of BigLaw firms in the United States (including 15 with major Australian presences) have been warned, by Republican senators, that a prospective GOP-led Congress will ramp up attacks on corporations that embrace environmental, social and governance initiatives.
Jerome Doraisamy
A total of 51 BigLaw firms in the United States — including Allen & Overy, Baker McKenzie, Clifford Chance, Dentons, DLA Piper, Herbert Smith Freehills, Hogan Lovells, Jones Day, Latham & Watkins, K&L Gates, Norton Rose Fulbright, Quinn Emanuel Urquhart & Sullivan, Reed Smith, Squire Patton Boggs, and White & Case — received a letter from five prominent Republican senators last week, which issued a not-so-subtle threat about the advice being offered by those firms to corporate entities.
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The letter — signed by senators Tom Cotton, Chuck Grassley, Marco Rubio, Mike Lee and Marsha Blackburn — tells firm leaders that they have a “duty to fully inform clients of the risks they incur by participating in climate cartels and other ill-advised ESG schemes”.
The ESG movement, the five lawmakers wrote, “attempts to weaponise corporations to reshape society in ways that Americans would never endorse at the ballot box”.
“Of particular concern is the collusive effort to restrict the supply of coal, oil, and gas, which is driving up energy costs across the globe and empowering America’s adversaries abroad,” they wrote.
Over the coming months and years, the Republicans warned, Congress will “increasingly use its oversight powers to scrutinise the institutionalised antitrust violations being committed in the name of ESG, and refer those violations to the [Federal Trade Commission] and the Department of Justice”.
The letter ended with a threat to BigLaw leaders: “To the extent that your firm continues to advise clients regarding participation in ESG initiatives, both you and those clients should take care to preserve relevant documents in anticipation of those investigations.”
The letter from the five Republicans also referenced evidence given in a recent Senate judiciary committee hearing, in which it was espoused, by FTC commissioner Lina Khan, that there exists no ESG exemption to antitrust laws.
Assistant Attorney-General Jonathan Kanter said in the same hearing, the letter advised, that “when firms have substantial power and they use that power to achieve anticompetitive ends, that should be actionable under the antitrust laws”.
The referencing of hearing evidence in the letter ultimately presumes, of course, that dozens of US-based BigLaw firms are engaging in “collusive”, antitrust practices pertaining to the provision of ESG advice.
It also presumes that Republicans will regain control of Congress in the US in this week’s mid-term elections (taking place tomorrow, Wednesday, 9 November, Australian time).
Whether the threat from Republican lawmakers ultimately comes to pass is yet to be seen, but it does beg the question: will our parliamentarians look to wield similar threats against Australia-based law firms?
