Morrison Foerster’s MoFo Impact blog provides insights on the latest news, developments, and trends in the impact and social entrepreneurship space. Through MoFo Impact, Morrison Foerster attorneys dedicated to impact investing and social enterprise work offer a real-time assessment of the developments in matters that are shaping the industry. Here, we examine the unique challenges faced by social enterprises and impact investors, including issues related to impact investments, disclosure requirements, hybrid corporate forms, fiduciary duties, and beyond.<h2>ABOUT MORRISON FOERSTER</h2>Morrison Foerster is a leading global law firm that transforms complexity into advantage for its clients. Our clients include some of the largest financial institutions, banks, consulting and accounting firms, and Fortune 100, technology, and life sciences companies. Highlighting the firm’s commitment to client service, leadership in market-changing deals and impact litigation, and values-based culture, Morrison Foerster has been repeatedly recognized as one of the top 10 firms on The American Lawyer’s A-List. Year after year, the firm receives significant recognition from Chambers and The Legal 500 across their various guides, including Global, USA, Asia‑Pacific, Europe, UK, Latin America, and FinTech Legal. Our lawyers passionately care about delivering legal excellence while living our values. Morrison Foerster has a long-standing commitment to creating a culture that respects and celebrates differences, while providing an inclusive environment. The firm has achieved Mansfield Certification Plus since 2018 as a result of successfully reaching at least 30 percent women, communities of color, and LGBTQ+ lawyer representation in a notable number of current leadership roles and committees. The firm also has a long history of commitment to the community and society through providing pro bono legal services, including litigating for civil rights and civil liberties, improving public education and fostering the wellbeing of children, advocating for veterans, promoting international human rights, enforcing the right to asylum, and safeguarding the environment.

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Susan (“Suz”) co-chairs the ESG + Sustainability and Social Enterprise + Impact Investing practices. Her practice focuses on late-stage financings, secondaries, and other corporate transactions for investors, such as SoftBank and Temasek, and on investments for some of the top investors dedicated to impact, from “impact first” foundations to family offices to private equity funds. She co-led the drafting group for the first of the new corporate forms (the Social Purpose Corporation in California), has created hybrid/tandem corporate structures and crafted debt and equity instruments that blend impact with traditional financial terms, and has used corporate law to develop creative capital market solutions to pressing environmental problems. She also advises the boards of public and private companies on corporate governance and fiduciary duties as applied to sustainability and climate change.She was named a California Lawyer Attorney of the Year (CLAY) in 2012 and 2016 by Daily Journal and the Most Innovative Lawyer in North America in 2015 by the Financial Times.Leading Business AdvisorA powerhouse negotiator, clients note that “you cannot get a better corporate counsel” and that Suz “understands the big picture, could not be more responsive, and understands the business” (The Legal 500 US). She has extensive experience providing corporate and finance advice to companies and investors in connection with growth equity financings and secondaries, with particular experience in late-stage investments that have come to rival traditional strategic acquisitions in size and significance. Her experience includes leading some of the highest-profile late-stage investments over the past few years, including notable transactions for SoftBank Group (in the two largest private tender offers in history) in its $7.7 billion investment in Uber, $4.4 billion investment in WeWork, further $10 billion investment in WeWork, $1 billion investment in SoFi, and $250 million investment in Kabbage. She has also advised Temasek on its $800 million investment in Verily Life Sciences, Intel on its equity investment in Cloudera, and each of Fortress, TPG Rise, Vision Ridge Partners, Generation Investment Management, and Pontifax AgTech in numerous mid- to late-stage investments in clean technology, sustainability, education, food, and agriculture technology.Social Enterprise and Impact InvestingSuz is the go-to legal resource for social enterprises (for-profit and non-profit companies focused on social or environmental purpose), impact investors (investors interested in social or environmental returns), and mainstream companies developing environmental, social, and corporate governance policies. With deep expertise in the impact investing model, institutional investors exploring the space turn to her for creative solutions and her ability to structure both investments and companies to emphasize impact and returns.She represents a wide range of investors who are focused on impact, from foundations like the Gates Foundation, The Nature Conservancy, and The Rockefeller Foundation, to family offices like Armonia, Cornerstone Capital, Emerson Collective, New Island Capital, and Omidyar Network, to private equity funds like Goldman Sachs, TPG Rise, Vision Ridge Partners, and Generation Investment Management, in their equity investments in companies and projects that are focused on generating impact and returns for investors. She has deep experience and expertise ensuring energy, sustainability, and other investments have positive impact through the use of new corporate forms, hybrid or “tandem” structures with non-profits and for-profits, and alternative debt and equity instruments.Notable work in this space includes the establishment of a tandem structure, The Carbon Endowment, to retire coal assets at scale while securing a revenue stream for community reinvestment and job training in coal communities. Suz also advised on the structuring of Common Sense Growth as an extension of the non-profit Common Sense Media (to invest in companies that address issues related to children, education, and technology), the establishment of a fund for TPG Rise to provide debt financing to Echoing Green fellows, the spin-out of PRX from Public Radio International (to generate new revenue flows up to the non-profit), the establishment of a for-profit joint venture with non-profit Medicines360 (to allow the non-profit to distribute its healthcare products to women in the developing world), and the structuring of a for-profit evergreen fund that allows The Nature Conservancy to aggregate return-seeking and donor capital in order to invest in preserving our natural resources. She has also advised numerous clients on converting to a public benefit corporation or social purpose corporation model (which requires balancing traditional fiduciary duties against a social or environmental purpose), including This American Life, Revolution Foods, Rise Labs, and Beneficial State Bancorp.Suz also regularly advises boards of directors of private and public companies, special committees, and CEOs on corporate governance, particularly the intersection of fiduciary duties with sustainability, and focuses on environmental, social, and governance issues.Unmatched Cleantech and Renewable Energy ExperienceIn addition to founding and chairing the firm’s Social Enterprise and Impact Investing Group, Suz serves as Chair of Morrison & Foerster’s Energy Group and has extensive experience representing start-up to late stage private companies in the clean technology or sustainability space. She provides corporate and finance advice in connection with equity and debt financings, mergers, acquisitions, asset purchases and sales, reorganizations, and joint ventures. She has experience working with renewable energy start-up companies and renewable energy developers in the solar, wind, and biofuels industries. Suz has assisted renewable energy start up companies with raising venture capital and has advised renewable energy developers on project acquisitions.Suz’s representative renewable energy, cleantech, sustainable, and social enterprise clients include Anaergia, Change.org, EDF Renewables, E.ON, Etsy, First Look, OneSun, Planet Labs, Rising Sun Energy, RSF Social Finance, SustainBio, Trelys, Inc., Wikipedia, and Xpansiv.Board Activity and Thought LeadershipMs. Mac Cormac was a founding board member of the Sustainability Accounting Standards Board (SASB), is a member of the board of directors of Business for Social Responsibility (BSR), the Ceres President’s Council, and the Earth Genome Project, and is an advising board member of the Committee Encouraging Corporate Philanthropy’s Strategic Investor Initiative.She has joined the faculty (teaching on the intersection of sustainability and fiduciary duties) at both the Stanford Director’s College and the Northwestern Corporate Counsel Institute and is an adjunct professor at UC Berkeley School of Law, teaching a course on Social Enterprise.

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Susan (“Suz”) co-chairs the ESG + Sustainability and Social Enterprise + Impact Investing practices. Her work focuses on advising innovative sustainable companies and investors, with particular expertise on ensuring investments have positive impact through use of new corporate forms, hybrids, alternative debt and equity instruments and disclosure.

Susan (“Suz”) co-chairs the Environmental, Social, and Governance (ESG) and Social Enterprise + Impact Investing practices. Her work focuses on advising innovative sustainable companies and investors, with particular expertise on ensuring investments have positive impact through use of new corporate forms, hybrids, alternative debt and equity instruments and disclosure.

<h5 dir="ltr">As Chair of the firm’s Social Enterprise + Impact Investing and Energy + CleanTech practice groups, I find it uniquely fulfilling to help emerging companies and their investors channel great ideas and good intentions into tangible, positive change.</h5>How I Help: I have extensive experience representing startup to late-stage private companies primarily in the clean technology, renewable energy and sustainability space. I counsel on corporate and finance matters in connection with equity and debt financings, mergers, acquisitions, asset purchases and sales, reorganizations, and joint ventures. I’m frequently called upon for my expertise in new corporate forms, hybrid of “tandem” structures with non-profits and for-profits, and alternative debt and equity instruments. I also regularly advise boards of private and public companies, special committees, and CEOs on corporate governance as it relates to sustainability and CSR.Favorite app or tech product: Strava. I love tracking the miles I run each week.Favorite place for client meetings: A walk in the PresidioLife beyond the law: When I’m not preaching to the world about the power of corporate form, I spend my time outside the office with my three young sons. I currently coach my youngest’s little league team. Go Pirates!

Susan Mac Cormac

Alfredo Silva is a partner in the Transactions Department, co-chair of the firm's Social Enterprise and Impact Investing Group, and a member of the ESG Strategy Committee. Alfredo represents companies and investors in a broad range of corporate and securities law matters, with a focus on businesses in the life sciences, agtech and fintech sectors. Alfredo’s practice includes capital markets transactions, venture capital, growth equity and corporate venture financings, tender offers and other secondary offerings, digital token matters, and mergers and acquisitions. Alfredo also helps clients leverage environmental, social and governance (ESG) factors to evaluate risk and opportunities and to invest responsibly in businesses seeking sustainable growth and impact.In his private company practice, Alfredo has served as company or investor counsel in early- and late-stage financings, minority strategic investments and impact investments in dozens of private companies, including representation of SoftBank and SoftBank Vision Fund in financings with a combined value of over $2 billion, Temasek in its $800 million minority investment in Verily Life Sciences, an Alphabet company, and Visa Ventures in strategic fintech investments around the world.In his public company practice, Alfredo counsels issuers on strategic transactions, such as the stock-for-stock merger of Marrone Bio Innovations, Inc. with Bioceres Crop Solutions Corp, as well as corporate governance and compliance with the U.S. federal securities laws and stock exchange listing standards, including advising on cutting-edge issues with respect to ESG disclosures and materiality assessments.In addition, Alfredo works extensively with nonprofit organizations, providing advice on fiduciary issues, entity formation, structuring and other corporate matters, and assists small businesses pro bono. He incorporated and continues to advise Illuminate, the nonprofit producer of The Bay Lights, a 25,000 LED sculpture on the western span of the San Francisco-Oakland Bay Bridge, in structuring, corporate governance, and project management matters. Alfredo currently chairs the audit committees of the boards of directors of Eat. Learn. Play. Foundation, a charity founded by four-time NBA champion Stephen Curry and The New York Times bestselling author Ayesha Curry to unleash the potential of every child, and Berkeley Repertory Theatre, an international leader in innovative theater whose shows have won eight Tony Awards, nine Obie Awards and a Pulitzer Prize, among many other honors.Alfredo is recognized by The Recorder as a 2013 Lawyer on the Fast Track, in 2014 was the inaugural recipient of the firm’s Kathi Pugh Award for Pro Bono Service, is a 2017 Lawyers Committee for Legal Diversity Fellow, and was the recipient of the American Bar Association’s 2023 National Public Service Award. Alfredo received his B.S. degree, cum laude with distinction, in Engineering Sciences (Chemical) from Yale College in 2004 and received his J.D. degree from Yale Law School in 2008. Alfredo speaks conversational Spanish and Mandarin Chinese, and spent a year at China’s Tsinghua University researching issues in intellectual property protection on a Fulbright Fellowship.

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Alfredo Silva is co-chair of the firms Social Enterprise + Impact Investing practice and member of the firm’s Pro Bono Committee. He represents public and private companies and investors in a broad range of corporate and securities law matters, as well as nonprofit organizations on entity formation, fiduciary issues, and structuring.

Alfredo B. D. Silva represents public and private technology companies and strategic and financial investors in a broad range of capital markets transactions, early- and late-stage financings, and corporate governance matters in a variety of industries, including Life Sciences, Health Tech, FinTech, and SaaS.

Alfredo Silva is co-chair of the Morrison Foerster Social Enterprise + Impact Investing practice and member of the firm’s Pro Bono Committee. He represents public and private companies and investors in a broad range of corporate and securities law matters, as well as nonprofit organizations on entity formation, fiduciary issues, and structuring.

<h5 dir="ltr">My job is to think creatively and balance competing interests to solve complicated problems, and the end result is that the companies I’m working with are able to raise the capital they need to grow, creating and maintaining jobs for others while bringing great products and services to consumers.</h5>How I help: I represent companies throughout their lifecycles, from entity formation to debt and equity financing to exit alternatives, including initial public offerings and mergers and acquisitions. I also counsel investors in venture financing, late stage / growth equity financing, strategic investments, secondary transactions, and impact investments in private companies in a wide variety of industries. Since I have a background in engineering, I get numbers, and often work closely with executives, finance teams, and financial advisors and analysts to model out complex capital structures, financing scenarios, and liquidity events. In doing so, I help clients analyze what’s possible, understand consequences of various transaction structures, and enhance their economics in deals in value from the tens of millions to the billions of dollars.Favorite app or tech product: I spend a lot of time these days checking Coinbase, seeing how the market reacts to developments in the cryptocurrency and blockchain spaces.Favorite place for client meetings: It’s great when you’re close enough with a client to catch up and talk shop at their house!Life beyond the law: Skiing at Lake Tahoe in the winter, weekends in Dolores Park in the summer, and travel to see family and friends in between.

Alfredo B. D. Silva

Benjamin Fox is a partner in the firm’s San Francisco office and a member of the firm’s Social Enterprise and Impact Investing Group. Benjamin’s practice focuses on the representation of clients in corporate and transactional matters, with a focus on investors and companies dedicated to pursuing social or environmental goals alongside financial returns.Benjamin counsels startup to late-stage private companies and venture capital and private equity investors, as well as family offices, private foundations, and public charities in early-stage and late-stage financings, mergers, acquisitions, asset purchases and sales, joint ventures, and hybrid or “tandem” structuring arrangements between nonprofit and for-profit entities. Benjamin has extensive experience working with investors and companies in the climate technology and infrastructure and sustainability space. He regularly advises clients on creative legal structures with respect to aggregating and deploying capital to maximize impact and returns.Benjamin earned his J.D. from the University of California, Berkeley, School of Law (Boalt Hall), with a certificate of specialization in both Environmental Law and Energy and Clean Technology Law. At Boalt, he served as an executive editor of Ecology Law Quarterly, a member of the California Law Review, and a judicial extern for the Honorable Edward M. Chen of the U.S. District Court for the Northern District of California. Benjamin received the Ellis J. Harmon Prize for best legal writing in Environmental Law and Policy and was a NAPABA Law Foundation Scholarship recipient for commitment to serve the Asian Pacific American community.Prior to law school, Benjamin worked for the U.S. Department of Energy in Beijing, China and spent a year at Taiwan’s Tunghai University researching renewable energy and urban development policy on a Fulbright Fellowship. He earned his B.A. with distinction and highest honors from the University of Michigan.

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Benjamin Fox is a partner in the firm’s San Francisco office and a member of the firm’s Social Enterprise and Impact Investing Group. Benjamin’s practice focuses on the representation of clients in corporate and transactional matters, with a focus on investors and companies dedicated to pursuing social or environmental goals alongside financial returns.

Benjamin Fox is an associate in the Morrison Foerster Corporate Department in the San Francisco office. Benjamin is a member of the firm’s Social Enterprise and Impact Investing and Energy and Clean Technology Groups.

<h5 dir="ltr">I feel fortunate to assist companies and investors focused on tackling our most pressing global environmental and social challenges.</h5>How I help: I provide counsel to companies from formation until exit, including in connection with corporate structure and governance, early- and late-stage equity financings, mergers and acquisitions, and joint ventures.  As a member of our Social Enterprise + Impact Investing Group, I frequently advise clients on the legal tools available to promote mission-driven businesses, including attracting non-profit and for-profit capital, and utilizing hybrid non-profit/for-profit structures and new corporate forms.  I also have a particular expertise in the renewable energy sector and work closely with investors, renewable energy developers and cleantech startups on a wide range of corporate matters.Favorite app or tech product: GuitarTuna. It’s pretty good at tuning my guitar.Favorite place for client meetings: At a baseball game. Fenway Park will always be the best, but other stadiums will suffice.Life beyond the law: Enjoying the great outdoors.

Benjamin Fox

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Climate Links: 5/31/2024

Climate Links: 5/17/2024

Climate Links: 5/10/2024

Climate Links: 5/3/2024

Climate Links: 4/26/2024

MoFo and BSR’s monthly conversation series, ESG Influencers – Leading Transformative Change, showcases an influencer from the environmental, social, and governance (ESG) arena, providing insights on how they are leading transformative change to help build a more sustainable future.The 14th episode in this series focuses on “Business Leadership in the Context of 2024’s Elections,” with Aron Cramer, President and CEO of BSR, interviewing Daniella Ballou-Aares, Founder and CEO of the Leadership Now Project.Daniella started the Leadership Now Project in 2017 to focus business leaders on the critical actions required to renew American democracy. Daniella began her career at Bain & Company, working across the firm’s offices in the United States, South Africa, and the United Kingdom. From there, she became a founding partner at Dalberg, where she led the Americas business and transformed the startup into the largest social impact strategy firm, with 25 offices worldwide. She spent five years in the Obama administration as the Senior Advisor for Development to the Secretary of State, serving under Secretaries Clinton and Kerry. Daniella’s perspectives have been featured in publications such as the Harvard Business Review, New York Times, Fast Company, and POLITICO, and at the World Economic Forum. Daniella is a member of the Council on Foreign Relations and was a 2014 World Economic Forum Young Global Leader. She holds an M.B.A. from Harvard Business School, an M.P.A. from the Kennedy School, and a B.S. cum laude in operations research and industrial engineering from Cornell.The <a href="https://www.leadershipnowproject.org/" target="_blank">Leadership Now Project</a> is a membership organization of business and thought leaders taking action to protect and renew American democracy. It mobilizes its members’ influence, expertise, and investment for high-impact solutions for American democracy. Leadership Now members are the foundation of the organization, driving action and enabling impact. Founded in 2017 by a group of Harvard Business School alumni, today the Leadership Now Project has members across more than 25 states and collaborates with faculty at 15+ colleges and universities.<a href="https://www.mofo.com/resources/video-audio/240308-business-leadership-in-the-context-of-2024s-elections" target="_blank">Watch</a> this episode.For more information, please visit our <a href="https://www.mofo.com/bsr-esg-influencers" target="_blank">conversation series page</a>.

MoFo + BSR: ESG Influencers–Leading Transformative Change Episode 14: Business Leadership in the Context of 2024's Elections

Susan (Suz) Mac Cormac, San Francisco partner, has extensive experience in corporate law, ESG, social enterprise and impact investing, and venture capital.

Susan H. Mac Cormac | Corporate + ESG Attorney

MoFo + BSR: ESG Influencers–Leading Transformative Change Episode 14: Business Leadership in the Context of 2024's Elections

MoFo and BSR’s monthly conversation series, ESG Influencers – Leading Transformative Change, showcases an influencer from the environmental, social, and governance (ESG) arena, providing insights on how they are leading transformative change to help build a more sustainable future.

MoFo and BSR’s monthly conversation series, ESG Influencers – Leading Transformative Change, showcases an influencer from the environmental, social, and governance (ESG) arena, providing insights on how they are leading transformative change to help build a more sustainable future.The thirteenth episode in this series focuses on “ESG: Looking Back and Ahead,” with Aron Cramer, president and CEO at BSR, and Susan H. Mac Cormac, co-chair of the ESG + Sustainability and Social Enterprise + Impact Investing practices at MoFo.The ESG and impact space witnessed interesting developments in 2023, ranging from new regulations to anti-ESG legislation, litigation, and enforcements. This discussion provided insights and reviewed key events that took place in the ESG and impact space last year, as well as highlighted trends and predictions for 2024 and beyond.<a href="https://www.mofo.com/resources/video-audio/240205-esg-looking-back-and-ahead" target="_blank">Watch</a> this episode.For more information, please visit our <a href="https://www.mofo.com/bsr-esg-influencers" target="_blank">conversation series page</a>.

MoFo + BSR: ESG Influencers–Leading Transformative Change Episode 13: ESG: Looking Back and Ahead

MoFo + BSR: ESG Influencers–Leading Transformative Change Episode 13: ESG: Looking Back and Ahead

MoFo’s weekly Climate Links provide the latest industry updates from thought leaders and third-party sources. This week:<a href="https://senecaesg.com/insights/insights-california-leads-with-sec-climate-disclosure-requirements-delayed/?utm_campaign=insights-california-leads-with-sec-climate-disclosure-requirements-delayed&utm_medium=rss&utm_source=rss" target="_blank">California Leads with SEC Climate Disclosure Requirements Delayed</a><ul><li dir="ltr">In what was expected to be a positive end to 2023 for ESG investors and sustainability officers, the Securities and Exchange Commission’s (SEC) climate disclosure requirements release has been rescheduled to release in the spring of 2024. Despite bold efforts made by California’s momentous climate disclosure legislation release in October, Gary Gensler, the SEC’s chair, has declined to comment on specific reasons for the delay or offer a definitive timeline to see the crucial federal legislation enacted.</li></ul><a href="https://www.cnbc.com/2024/01/10/good-news-bad-news-us-emissions-shrank-last-year-but-very-slowly.html" target="_blank" dir="ltr">Good news, bad news: U.S. emissions shrank last year, but very slowly</a><ul><li dir="ltr">“This is the first time since 2019 that the economy has grown while emissions have fallen,” said Ben King, an associate director leading the Rhodium Group energy team. The modest emissions reduction represents progress, but also shows that U.S. climate goals remain far-fetched without additional ambition at the highest levels of government and industry.</li></ul><a href="https://www.reuters.com/business/environment/us-scientists-say-one-in-three-chance-2024-another-year-record-heat-2024-01-12/" target="_blank" dir="ltr">U.S. scientists say one-in-three chance 2024 another year of record heat</a><ul><li dir="ltr">In its annual global climate analysis, the U.S. National Oceanic and Atmospheric Administration (NOAA) confirmed the findings of EU scientists that 2023 was the warmest since records began in 1850, putting it at 1.35 degrees Celsius (2.43 degrees Fahrenheit) above the preindustrial average. The amount of heat stored in the upper layers of the ocean also reached a record high last year, NOAA said.</li></ul>EPA proposes new rules for methane emission fees<ul><li dir="ltr">The <a href="https://www.epa.gov/inflation-reduction-act/methane-emissions-reduction-program" target="_blank">Methane Emissions Reduction Program</a>, an enforcement provision in the 2022 climate law, imposes fees on excess emissions, and those fees will increase over the rest of the decade. The fee will initially kick in at $900 per metric ton this year, rise to $1,200 next year, and increase to $1,500 from 2026 on.</li></ul>EPA to levy fees on methane, a climate super-pollutant<ul><li dir="ltr">The Environmental Protection Agency proposed steep new fees on methane emissions from oil and gas facilities, escalating a crackdown on the fossil fuel industry’s planet-warming pollution.</li></ul><a href="https://www.linkedin.com/pulse/esg-fire-tim-mohin-x4bae/?trackingId=G8%2F2%2F9XgToCzOqF91BethQ%3D%3D" target="_blank" dir="ltr">ESG & Climate News: ESG on Fire</a><ul><li dir="ltr">A viral WSJ article, “<a href="https://www.wsj.com/business/the-latest-dirty-word-in-corporate-america-esg-9c776003" target="_blank">The Latest Dirty Word in Corporate America: ESG</a>,” showed how Corporate America is turning away from ESG as the term becomes politicized and legal threats for greenwashing loom.</li></ul>

MoFo’s weekly Climate Links provide the latest industry updates from thought leaders and third-party sources. 

Climate Links: 1/12/2024

MoFo and BSR’s monthly conversation series, ESG Influencers – Leading Transformative Change, showcases influencers from the environmental, social, and governance (ESG) arena, providing insights on how they are leading transformative change to help build a more sustainable future.The twelfth episode in this series focuses on “Climate Disclosure Rules: Preparing for Regulatory Oversight,” with Kristina Wyatt, Deputy General Counsel and Chief Sustainability Officer at Persefoni, and Neil Stewart, Director of Corporate Outreach at the International Sustainability Standards Board (ISSB). The discussion was led by MoFo partner Jackie Liu.This year witnessed an unprecedented increase in climate disclosure rules – mandatory and voluntary. The regulations and standards follow increased demands for standardization and reliance on climate-related disclosures by stakeholders, including investors and consumers. As regulations, such as California’s Climate Accountability (CCA) package, proliferate and the industry coalesces around voluntary standards such as the ISSB’s IFRS S1 and IFRS S2 standards, the importance of preparing and positioning for alignment is apparent. The discussion will provide a comprehensive overview of climate disclosure regulations in the U.S. and EU, specifically the EU’s CSRD, CCA, and the ISSB Standards, along with insights on what is on the horizon and how companies can sufficiently prepare for reporting requirements in this everchanging landscape.<a href="https://www.mofo.com/resources/video-audio/231219-climate-disclosure-rules-preparing-for-regulatory-oversight" target="_blank">Watch</a> this episode.For more information, please visit our <a href="https://www.mofo.com/bsr-esg-influencers" target="_blank">conversation series page</a>.

MoFo + BSR: ESG Influencers–Leading Transformative Change Episode 12: Climate Disclosure Rules: Preparing for Regulatory Oversight

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Jackie engages in a general corporate and transactional practice, with special emphasis on corporate counseling of public companies, mergers and acquisitions, and the China practice. 

Jackie Liu

Jackie Liu | White Collar Defense + M&A Lawyer

Our corporate governance practice brings together top lawyers from our corporate, regulatory and investigations, risk management, white collar defense and compliance, and executive compensation practices.

MoFo + BSR: ESG Influencers–Leading Transformative Change Episode 12: Climate Disclosure Rules: Preparing for Regulatory Oversight

MoFo and BSR’s monthly conversation series, ESG Influencers – Leading Transformative Change, showcases influencers from the environmental, social, and governance (ESG) arena, providing insights on how they are leading transformative change to help build a more sustainable future.

MoFo’s weekly Climate Links provide the latest industry updates from thought leaders and third-party sources. This week:<a href="https://www.cnbc.com/2023/12/13/what-the-cop28-deal-means-for-the-us-amid-record-oil-and-gas-output.html" target="_blank" dir="ltr">What the COP28 deal means for the U.S. amid record oil and gas output</a><ul><li dir="ltr">For the first time in nearly three decades, government ministers from nearly 200 countries approved a deal that calls on the world to move away from using fossil fuels. U.S. climate envoy John Kerry said the COP28 agreement “sends very strong messages to the world.” Climate campaigners singled out the need for the U.S. to lead the charge in shifting away from fossil fuels.</li></ul><a href="https://www.reuters.com/business/environment/what-are-loopholes-cop28-climate-deal-2023-12-14/" target="_blank" dir="ltr">What are the loopholes in the COP28 climate deal?</a><ul><li dir="ltr">Nations struck a historic deal at the COP28 climate summit in Dubai to transition the global economy away from fossil fuels. But some delegations and environmental groups say it contains major loopholes that could keep oil, gas, and coal flowing indefinitely.</li></ul><a href="https://thehill.com/policy/energy-environment/4361262-passenger-trains-climate-change-building-hurdles/" target="_blank" dir="ltr">Passenger trains could help combat climate change — if rail can actually get built</a><ul><li dir="ltr">The Biden administration is investing billions in passenger rail, giving a boost to a potentially important tool for mitigating climate change. However, significant hurdles could slow efforts to get more rail online.</li></ul><a href="https://www.bloomberg.com/news/features/2023-12-15/cop28-how-negotiators-reached-deal-to-transition-away-from-fossil-fuels?srnd=green" target="_blank" dir="ltr">COP28: How Negotiators Reached Deal to Transition Away from Fossil Fuels</a><ul><li dir="ltr">A controversial leader. A universally hated draft. Against all odds, climate negotiators reached their first-ever agreement on moving away from coal, oil, and gas.</li></ul>Who won and lost at the COP28 climate summit in Dubai<ul><li dir="ltr">Pacific Island nations left COP28 disappointed. The UAE gained some bragging rights. And the prospect of the world hitting its most ambitious climate goal remained in limbo.</li></ul><a href="https://www.greenbiz.com/article/biden-administration-announces-policy-decarbonize-federal-work-travel" target="_blank" dir="ltr">Biden administration announces policy to decarbonize federal work travel</a><ul><li dir="ltr">As part of its ambitious goal to make transportation sustainable in the future, the Biden-Harris administration announced a plan to cut emissions from federal employee travel.</li></ul><a href="https://www.linkedin.com/pulse/cop28-beginning-end-fossil-era-tim-mohin-tfoke/?trackingId=Symst2sHQMerSTPHgvQkug%3D%3D" target="_blank" dir="ltr">ESG & Climate News: COP28: Beginning of the End of the Fossil Fuel Era?</a><ul><li dir="ltr">This COP was different. Because it was hosted by a “petro-state” there was both hope and fear that it could make the breakthrough the world needs to fight climate change. But, as the clock clicked down, a deal looked out of reach. The negotiators worked into the wee hours, and emerged victorious with an agreement that was greeted by <a href="https://www.bbc.com/news/world-67701411" target="_blank">cheers and applause by delegates</a>.</li></ul><a href="https://www.bsr.org/en/blog/cop28-marks-important-steps-forward-now-the-real-work-begins" target="_blank" dir="ltr">COP28 Marks Important Steps Forward: Now the Real Work Begins</a><ul><li dir="ltr">After lengthy and spirited negotiations, COP28 closed with an important signal: an agreement by all the world’s nations to, among other things, “transition away from fossil fuels in energy systems, in a just, orderly and equitable manner, accelerating action in this critical decade, to achieve net zero by 2050 in keeping with the science.”</li></ul>

Climate Links: 12/15/2023

Climate Links: 12/15/2023

MoFo and BSR’s monthly conversation series, ESG Influencers – Leading Transformative Change, showcases an influencer from the environmental, social, and governance (ESG) arena, providing insights on how they are leading transformative change to help build a more sustainable future.The eleventh episode in this series focuses on “Just Transition: How Companies and Investors Can Ensure an Equitable and Sustainable Future,” with Aron Cramer, President and CEO of BSR, interviewing Kate Gordon, former Senior Advisor to Energy Secretary Jennifer Granholm at the U.S. Department of Energy (DOE).It is increasingly clear that the energy transition needs to be inclusive, not only to advance equity, but also to bolster the political will to take action. Increasingly, companies are devising just transition strategies to ensure that the energy transition considers questions such as access to clean energy, employment transition for those displaced from the fossil fuel economy, supply chain questions related to resources needed for the clean energy economy, and the means of addressing the economic and environmental harms related to fossil fuel development and deployment. Kate Gordon joins us to share her perspective and expertise based on her experience as a leading climate advisor.<a href="https://www.mofo.com/resources/video-audio/231103-just-transition-how-companies-and-investors" target="_blank" dir="ltr">Watch</a> this episode.For more information, please visit our <a href="https://www.mofo.com/bsr-esg-influencers" target="_blank">conversation series page</a>.

MoFo + BSR: ESG Influencers–Leading Transformative Change Episode 11: Just Transition: How Companies and Investors Can Ensure an Equitable and Sustainable Future

MoFo’s weekly Climate Links provide the latest industry updates from thought leaders and third-party sources. This week:<a href="https://www.cnbc.com/2023/10/27/peak-fossil-fuel-demand-is-coming-iea-says-and-china-will-be-key.html" target="_blank" dir="ltr">Peak fossil fuel demand is coming, IEA says — and China will be key</a><ul><li dir="ltr">China’s shifting economy is one of the important drivers behind the International Energy Agency’s belief that demand for fossil fuels will peak by 2030, according to Fatih Birol, the IEA’s executive director.</li></ul><a href="https://www.reuters.com/sustainability/cop/uae-will-not-host-next-years-cop29-climate-talks-official-says-2023-10-27/" target="_blank">UAE will not host next year’s COP29 climate talks, official says</a><ul><li dir="ltr">“The UAE has not been asked and has no intention of hosting COP29,” Majid Al Suwaidi, director general of the 2023 COP28 summit, told reporters on Friday. “We will not be hosting COP29.” Nations are scrambling to find an alternative venue for the event which sees representatives from nearly 200 countries gather to agree to joint efforts to tackle climate change.</li></ul><a href="https://thehill.com/policy/energy-environment/4278241-gulf-mexico-oil-lease-sale-court-indefinitely-blocks/" target="_blank">Court indefinitely blocks Gulf oil leasing deadline set for Nov. 8</a><ul><li dir="ltr">A federal appeals court indefinitely stayed an earlier order requiring the Biden administration to hold a November oil lease sale in the Gulf of Mexico, though it’s unclear whether the administration will immediately proceed with the sale.</li></ul><a href="https://www.utilitydive.com/news/buildings-energy-climate-change-emissions-reduction-doe/697774/?utm_source=Sailthru&utm_medium=email&utm_campaign=Issue:%202023-10-25%20Utility%20Dive%20Load%20Management%20%5Bissue:55817%5D&utm_term=Utility%20Dive:%20Load%20Management" target="_blank">DOE touts $18.5B in business energy savings through Better Buildings Initiative</a><ul><li dir="ltr">U.S. public and private sector businesses and government entities participating in the U.S. Department of Energy’s Better Buildings Initiative have collectively saved more than $18.5 billion through <a href="https://www.energy.gov/articles/doe-announces-185-billion-energy-savings-and-celebrates-first-year-results-better-climate" target="_blank">efficiency improvements and emission reduction measures</a>, according to a new DOE report. </li></ul>For New Zealand’s Maori communities, climate change is already hurting<ul><li dir="ltr">TANGOIO, New Zealand — The wharenui, or meeting house, stood forlorn. Usually, the hub of this remote Maori community, it had been stripped of its wooden carvings. The bare cinder block shell gave the building an unclothed appearance. Wind whistled through holes bashed out by floodwaters. An official red notice prohibited entry to the adjacent dining hall, where the walls were askew, jammed with twigs and debris. The preschool was shuttered, the children gone. Down the valley, dump trucks whirred as they hauled silt from ruined fields. </li></ul><a href="https://www.greenbiz.com/article/helping-companies-navigate-todays-evolving-global-esg-regulatory-landscape" target="_blank">Helping companies navigate today’s evolving global ESG regulatory landscape</a><ul><li dir="ltr">Increased regulations around the world are requiring companies to disclose information regarding the extra-financial aspects of their business to interested stakeholders. Thus, being proactive in monitoring current and emerging ESG regulations to ensure compliance and remain competitive has become a business imperative.</li></ul><a href="https://www.linkedin.com/pulse/esg-beyond-redemption-tim-mohin-e7b6e/?trackingId=cuX%2FuTI5QjyVw7uWuVUCCw%3D%3D" target="_blank">ESG & Climate News: Is ESG Beyond Redemption?</a> <ul><li dir="ltr">2023 has been a tough year for the beleaguered abbreviation ESG, with a global backlash against the term and money pouring out of ESG funds, three headlines this week highlighted ESG’s rough patch:</li><ul><li>FT: <a href="https://www.ft.com/content/d4082c75-3141-4a58-935b-60a44c22897a" target="_blank">ESG is beyond redemption: may it RIP</a></li><li>NYT: <a href="https://www.nytimes.com/2023/10/24/business/dealbook/esg-big-oil-deals.html" target="_blank">Is ESG Falling Out of Favor?</a></li><li>CNN: <a href="https://edition.cnn.com/2023/10/23/investing/premarket-stocks-trading/index.html" target="_blank">ESG investing is dying on Wall Street. Here’s why</a></li></ul></ul>

Climate Links: 10/27/2023

With its European Green Deal presented in 2019, the European Commission (the “Commission”) aims to transform the EU into a modern, resource-efficient, and competitive economy, ensuring no net emissions of greenhouse gases by 2050 and economic growth decoupled from resource use.Part of this Green Deal is a proposed update of EU consumer law to ensure that consumers are protected and to empower them to contribute actively to the green transition. After the EU Commission presented a proposal for a directive in <a href="https://www.europarl.europa.eu/RegData/docs_autres_institutions/commission_europeenne/com/2022/0143/COM_COM(2022)0143_EN.pdf" target="_blank">March 2022</a> to address these points, the European Council and Parliament have now provisionally agreed to this proposal (press releases see <a href="https://www.consilium.europa.eu/en/press/press-releases/2023/09/19/council-and-parliament-reach-provisional-agreement-to-empower-consumers-for-the-green-transition/?utm_source=dsms-auto&utm_medium=email&utm_campaign=Council+and+Parliament+reach+provisional+agreement+to+empower+consumers+for+the+green+transition" target="_blank">Council and Parliament reach provisional agreement to empower consumers for the green transition</a> and <a href="https://www.europarl.europa.eu/news/en/press-room/20230918IPR05412/eu-to-ban-greenwashing-and-improve-consumer-information-on-product-durability" target="_blank">EU to ban greenwashing and improve consumer information on product durability</a>). This paves the way for an EU-wide ban of unfair greenwashing practices (i.e., misleading environmental claims)  and improved consumer information on product durability. For more information on this topic, please also refer to our December 2022 blog post “<a href="https://www.mofo.com/resources/insights/221220-green-greener-greenwashing" target="_blank">Green, Greener, Greenwashing – Green Claims Marketing in the EU and Germany</a>,” where we explain the requirements for green claims under current law, including enforcement risks.Ban on Greenwashing as an Unfair Business PracticeThe Commission, now officially supported by the European Council and the Parliament, aims to protect consumers against unfair greenwashing practices by amending the Unfair Commercial Practices Directive 2005/29/EC (“UCP-Directive”).The UCP-Directive regulates misleading practices in business-to-consumer transactions when they negatively affect consumers’ transactional decisions. Even under current law, these provisions can already be applied to environmental or so-called green claims. This has also been done by courts in numerous Member States.To further protect consumers from misleading environmental claims and unreliable sustainability labels, the proposal to amend the UCP-Directive contains, among others, the following changes:1. The list of product characteristics about which a trader should not deceive a consumer is amended to include “environmental or social impact,” “durability” and “reparability.”2. The list of actions considered misleading is amended to include “making an environmental claim related to future environmental performance without clear, objective and verifiable commitments and targets and an independent monitoring system.”3. The list of commercial practices considered unfair in all circumstances is extended to certain practices associated with greenwashing (e.g., displaying a sustainability label not based on a certification scheme or not established by public authorities or making an environmental claim about the entire product when that claim concerns only a certain aspect of the product).These amendments would be the EU’s first step towards a ban on greenwashing and strict regulation of green claims. In March 2023, the Commission also announced a further step: a proposal for a directive on substantiation and communication of explicit environmental claims (<a href="https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2023%3A0166%3AFIN" target="_blank">Green Claims Directive</a>).Providing Consumers with Better Product InformationNext to the greenwashing ban, the Commission also proposed amendments to the Consumer Rights Directive 2011/83/EU. The proposal aims to enable consumers to make informed purchasing decisions and therefore contribute to more sustainable consumption. Among others, the proposal aims at1. providing information on the existence and length of a producer’s commercial guarantee of durability;2. providing information on the availability of free software updates for all goods with digital elements, digital content, and digital services;3. providing information on the reparability of products, through a reparability score or other relevant repair information, where available, for all types of goods; and4. ensuring that traders do not mislead consumers about environmental and social impacts, durability, and reparability of products.OutlookThe Commission’s proposal is supported by the Council and the Parliament. It can therefore be assumed that the proposed amendments will actually enter into force. A vote in Parliament is expected in November. If the proposal receives the expected majority, the directive will enter into force. Member states will then have 24 months to implement the directive.Stakeholders should not wait until then to align their environmental or green claim marketing practices with the standards described above. Most of these requirements are already implicitly required by applicable law today. Consumer associations and competent authorities in many EU member have successfully brought legal actions and initiated administrative proceedings against companies using potentially misleading green claims. Even before the UCP-Directive is amended, it is therefore important to assure that green claims are not misleading in any way and that there is sufficient evidence in place to substantiate the green claim further if it is challenged.Research assistant Tim Stripling contributed to this article.

Legislative Update: EU’s Greenwashing Ban Clears Next Hurdle

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Counsel

Jens is a counsel at Morrison Foerster’s German office in Berlin. He advises clients in all areas of European and German competition law, including merger control filings, cartel authority investiga

Jens Hackl

Jens Hackl is a counsel at Morrison Foerster’s German office in Berlin. He advises clients in all areas of European and German competition law, including merger control filings, cartel authority investigations, cartel damage claims, distribution cartel law, antitrust compliance programs and unfair competition law. Jens has particular industry-specific experience in the areas of media, technology, telecommunication, transport and aviation. In addition, he advises in the fields of state aid and public procurement law.

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Robert advises companies in the healthcare, pharmaceutical, medical device, and technology industries on all aspects of intellectual property law, primarily in connection with commercial life sciences, licensing, and technology transactions. His clients range from multinational companies to startups.

Robert Grohmann

Robert Grohmann is counsel at Morrison Foerster’s German office in Berlin. As a member of the technology transactions group, he focuses on advising domestic and foreign companies and startups in all areas of technology and IP law, including patent and software licensing, employee inventions law, as well as know-how protection. Moreover, Mr. Grohmann’s expertise encompasses the judicial and extra-judicial representation in matters of trademark law, design law, and competition law.

Legislative Update: EU’s Greenwashing Ban Clears Next Hurdle

With its European Green Deal presented in 2019, the European Commission (the “Commission”) aims to transform the EU into a modern, resource-efficient, and competitive economy, ensuring no net emissions of greenhouse gases by 2050 and economic growth decoupled from resource use.

MoFo and BSR’s monthly conversation series, ESG Influencers – Leading Transformative Change, showcases an influencer from the environmental, social, and governance (ESG) arena, providing insights on how they are leading transformative change to help build a more sustainable future.The tenth episode in this series focuses on “How Large Financial Institutions Are Integrating Climate Strategies,” with Suz Mac Cormac, global co-chair of the Environmental, Social, and Governance (ESG) and Social Enterprise + Impact Investing practices at MoFo, interviewing Rama Variankaval, global head of Corporate Advisory & Sustainable Solutions at J.P. Morgan.Rama provides insights on the design and implementation of J.P. Morgan’s sustainability‑related commitments and decarbonization strategy and how the firm engages with clients that operate in carbon-intensive industries, with the goal of helping accelerate the low-carbon transition and path toward global achievement of net-zero emissions by 2050.<a href="https://www.mofo.com/resources/video-audio/231011-mofo-bsr-esg-influencers-leading-transformative-change" target="_blank">Watch</a> this episode.For more information, please visit our <a href="https://www.mofo.com/bsr-esg-influencers" target="_blank">conversation series page</a>.

MoFo + BSR: ESG Influencers–Leading Transformative Change Episode 10: How Large Financial Institutions Are Integrating Climate Strategies

MoFo + BSR: ESG Influencers–Leading Transformative Change Episode 10: How Large Financial Institutions Are Integrating Climate Strategies

Regulators across the globe continue to focus on disclosures and marketing relating to environmental, social, and governance (ESG) issues. Consistent with this trend, on September 20, 2023, the U.S. Securities and Exchange Commission (SEC) adopted amendments to Rule 35d 1 (the “Names Rule”) under the Investment Company Act of 1940, as amended (the “1940 Act”). The amendments expanded the scope of the Names Rule to require any investment company registered under the 1940 Act (a “fund”) with a name that includes terms suggesting that it focuses on investments that have, or investments whose issuers have, particular characteristics, to adopt a policy to invest at least 80 percent of the value of its assets (an “80% policy”) in such investments.According to the SEC, the amendments to the Names Rule are designed to address fund names that are likely to mislead investors about a fund’s investments and risks, including names that have a thematic investment focus (e.g., “growth” or “value”) and, most notably, names that indicate a fund’s investment decisions incorporate one or more ESG factors. As the SEC continues to focus enforcement efforts on ESG-related marketing, funds and their investment advisers should expect SEC scrutiny of any ESG-related terms used in a fund’s name following the compliance date of the Names Rule. Read <a href="https://www.mofo.com/resources/insights/231010-esg-claim-to-fame-addressing-fund-names" target="_self">our client alert</a>.

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Co-chair of Investment Management Group

Kelley Howes is a Partner in the Denver office and Co-Chair of the Investment Management Group.

Kelley A. Howes

Kelley Howes serves as co-chair of Morrison & Foerster’s Investment Management Group. She has experience with a wide range of legal, regulatory, compliance, corporate governance, insurance, and other matters relating primarily to the representation of U.S. registered and unregistered investment companies, offshore funds, registered investment advisers, transfer agents, and broker-dealers.

Kelley Howes

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Associate

Aaron Russ is an associate in the Washington D.C. office of Morrison Foerster and a member of the firm’s Investment Management Group. 

Aaron J. Russ

Aaron Russ

Regulators across the globe continue to focus on disclosures and marketing relating to environmental, social, and governance (ESG) issues. Consistent with this trend, on September 20, 2023, the U.S. Securities and Exchange Commission (SEC) adopted amendments to Rule 35d 1 (the “Names Rule”) under the Investment Company Act of 1940, as amended (the “1940 Act”). 