Environmental, social and governance (ESG) criteria are a set of nonfinancial standards for business operations that investors and other key stakeholders are increasingly applying as part of their evaluation to identify material risks and growth opportunities. Prioritizing these objectives has become an essential commitment for businesses and other organizations. Thompson Hine’s comprehensive ESG team helps our clients achieve success in each of these areas as we partner with them to meet their evolving ESG goals and objectives.
Additional regulatory rulemaking is on the horizon, both in the United States and abroad. Many of the current administration’s priorities are tied to ESG. Additionally, the Securities and Exchange Commission and other regulatory agencies are increasingly focusing on ESG issues, and organizations such as the Sustainability Accounting Standards Board, Global Reporting Initiative and Task Force on Climate-Related Financial Disclosures are working to create additional standards and define materiality to facilitate incorporation of these factors into the investment process. In the absence of a single, uniform ESG reporting framework and with the proliferation of ESG rating agencies, businesses face data collection and reporting challenges.
While investors are a significant driving force to increase transparency and accountability and change reporting obligations and regulatory requirements, the list of stakeholders concerned with businesses’ ESG performance is growing daily. Companies and their leadership understand that an organization’s public reputation and consumer confidence can rise or fall depending on how well it incorporates ESG strategies into its policies and practices. The global pandemic created financial upheaval that was compounded by civil unrest. Add to this scenario growing concerns about sustainability and climate change, and businesses no longer can ignore ESG.
Thompson Hine has always guided clients on furthering their efforts toward sustainability, diversity and social stewardship. At this critical juncture when ESG criteria are increasing in importance as priorities for businesses, their boards and investors, we combine decades of experience with a multidisciplinary team of transactional, regulatory and other practitioners who possess practical, comprehensive legal and business knowledge to help clients develop and implement ESG strategies and accomplish goals to preserve value and mitigate risk. We also provide defense advice in investigations and litigation. Our overall goal is to help incorporate ESG criteria into our client’s business model to satisfy internal and external stakeholders. By using our proprietary SmartPaTH tools and strategies such as legal project management, value-based pricing and our overall investment in technology, we help clients achieve their objectives while providing value and certainty during uncertain times.
Illustrative examples of our environmental ESG counseling experience include:
- Advising on drafting and launching corporate sustainability programs, including ethical sourcing of raw materials, environmental impact investment, operational sustainability and carbon footprint reduction.
- Counseling on the financing, purchase and use of energy efficiency equipment and solar and wind power systems and fuel cells, including innovative arrangements to utilize tax credits and utility incentives.
- Advising on financing a portfolio of renewable energy and battery storage projects to reduce carbon emissions and improve the environment in developing nations.
- Counseling on negotiating power purchase agreements and offtake contracts for the use of energy generated by waste-to-energy, wind, solar, bioenergy and geothermal resources.
- Advising on meeting greenhouse gas emissions goals and achieving LEED and other sustainability certifications, reducing waste generation, and increasing the use of low-emissions vehicles and technologies.
- Counseling a utility scale electric generating station on transactional, regulatory and government affairs matters, including an agreement to repurpose the plant into the leading state-of-the-art commercial scale carbon capture utilization and sequestration facility and wholesale power generator.
- Advising a renewable energy projects developer on acquiring and preserving farmland throughout the U.S. for sustainable agriculture purposes.
- Advising on innovative projects to identify energy efficiency cost savings opportunities.
- Advising manufacturers on the potential use of solar and wind power and projects to help reduce energy costs and support sustainability initiatives.
- Counseling financial institutions on solar and wind power offtake contracts to help them achieve carbon credits/offsets goals.
- Managing comprehensive environmental energy audits at manufacturing facilities around the globe.
- Spearheading comprehensive EHS audits with a focus on implementing best practices in waste management and mitigation and identifying additional recycling opportunities.
- Providing guidance on compiling data to market and report on the manufacturing of more sustainable products to prevent claims of greenwashing and related regulatory prohibitions.
- Providing federal Clean Air Act and California Air Resources Board counseling to original equipment manufacturers on a variety of issues, such as emissions regulations (including tailpipe greenhouse gas emissions and hydrofluorocarbon phasedowns and prohibitions), electric vehicles and other alternative fuels, warranty and recall requirements and best practices, and attendant mobile state and federal mobile source matters.
- Formulating environmental management systems, including policies and procedures to manage environmental risk and increase compliance with health and safety laws and regulations.
Our experience advising on the social aspects of ESG criteria includes:
- Advising on human capital management programs.
- Providing guidance on all matters affecting the employer-employee relationship, including regulatory compliance, traditional labor and union relations, immigration, OSHA and workers’ compensation.
- Assisting in developing employee handbooks and policies such as sexual harassment prevention, anti-discrimination and social media policies.
- Conducting employer training programs on employment issues such as workplace culture, remote work arrangements, anti-harassment, workplace investigations and ADA compliance.
- Representing employers in a broad range of litigation, including cases involving discrimination, harassment, FMLA, wage/hour and retaliation.
- Advising on structuring compensation to incentivize the achievement of ESG objectives.
- Assisting with OSHA-related investigations.
- Assisting with employee health and welfare plans and employee compensation, incentive and benefit programs, including equity compensation plans and stock purchase plans.
- Assisting with ESG-related contractual commitments (supplier, vendor and otherwise).
- Assessing supply chains for compliance with conflict minerals regulations, including conducting due diligence on supply chain partners and identifying risk areas, and drafting conflicts minerals reports.
- Assisting with executive succession plans and crisis management.
- Advising on internal and external communications addressing developing social issues.
- Helping companies identify and mitigate potential forced labor, modern slavery, trafficking and related risks in their supply chains and counseling them on building compliance and sustainability programs, preparing disclosures and preparing for supply chain audits.
Examples of the ESG-related governance counsel we’ve provided include:
- Assisting in developing and implementing ESG programs.
- Advising on SEC and other public disclosures in proxy statements, annual reports and investor messaging, including addressing the SEC’s new human capital disclosure requirements, and in response to the SEC’s evolving climate and other ESG guidance as well as addressing expectations of shareholders and other constituencies.
- Assisting in implementing board and committee policies related to ESG and ESG risk oversight, including board duties and processes, disclosures, committee charters, codes of conduct and ethics, and other corporate governance policies.
- Advising on shareholder proposals, activism campaigns and shareholder engagement.
- Assisting with director independence determinations, potential conflicts of interest and related party transactions.
- Assisting in developing ESG metrics for compensation programs.
- Advising on integrating ESG factors into ERISA plan investment decisions and other considerations for fiduciaries making ESG-related investment decisions and exercising their shareholder rights.
- Providing guidance on how using a behavioral interview process and well-designed board self-assessments can help companies recruit and retain successful and high-performing directors while renewing their commitment to racial and ethnic diversity.
- Advising on state diversity laws and Nasdaq’s proposed new listing requirements to address board diversity, which would require most Nasdaq-listed companies to have (or disclose reasons for not having) at least two diverse directors, including one who self-identifies as female and one who self-identifies as either an underrepresented minority or LGBTQ+.
- Assisting with internal and regulatory investigations.
- Advising multinational corporations on compliance with the Foreign Corrupt Practices Act and other anti-corruption laws, including developing governance documentation and representing companies and individuals in DOJ and SEC enforcement actions.
- Advising on ESG due diligence in M&A transactions.
- Providing guidance on collecting, transferring and processing personal and consumer data to ensure strong data privacy safeguards and reduce risks.
- Designing data compliance programs and advising on mitigating damage if a breach occurs.
- Advising investment companies, investment advisers and other financial industry participants on legal, regulatory, enforcement and other ESG trends.
Securities Quarterly Update - Summer 2021
July 07, 2021
Business Law Update – Summer 2021 - Thompson Hine Newsletter
June 28, 2021
Securities Quarterly Update - Spring 2021
April 07, 2021
SEC Announces 2021 Exam Priorities - Investment Management Update
March 19, 2021
DOL and IRS Issue New Employee Benefits Guidance - Employee Benefits Update
September 29, 2020
Securities Quarterly Update - July 2020
July 07, 2020
Our ESG team advises on:
- Board matters, including strategies for responding to activists
- Development of ESG programs
- Corporate integrity and compliance
- Employment issues
- ESG executive compensation issues
- Environmental regulatory compliance
- Energy reduction audits
- Human rights compliance in supply chains
- Investment portfolio risk assessments and responsible investment strategies
- Prevention of greenwashing claims
- Acquiring real estate necessary to support ESG-related projects
- Strategic corporate risk assessments
- Public company reporting compliance
- Corporate governance and ESG disclosures
- Supplier and vendor contractual ESG matters
- Renewable energy projects including solar and wind power
- Power purchase agreements
- Energy efficiency projects
- Waste reduction and recycling
- Water conservation and resource management
- Supply chain management and circular economy strategies
- Mass torts and securities claims
- Sustainable and green finance and investment
- Tax credits for sustainable investments
- Governance/SEC Compliance – Jurgita Ashley, Co-Chair
- Environmental – Heidi B. (Goldstein) Friedman, Co-Chair
- Construction – Erin Luke
- DE&I – Marla R. Butler
- Employee Benefits & Executive Compensation – Edward C. Redder
- Energy – Gregory D. Chafee
- Executive Compensation – Nathan E. Holmes
- Finance – Eduardo Kim
- Intellectual Property – Ash D. Patel
- Internal Investigations/White-Collar – Joan Meyer
202.263.4115, 312.998.4240, Joan.Meyer@ThompsonHine.com
- International Trade – Samir D. Varma
202.263.4136, 212.344.5680, Samir.Varma@ThompsonHine.com
- Investment Management – Michael V. Wible
- Labor & Employment – Nancy M. Barnes
- Privacy & Cybersecurity – Steven G. Stransky
216.566.5646, 202.263.4126, Steve.Stransky@ThompsonHine.com
- Real Estate – Robyn Minter Smyers
- Securities & Shareholder Litigation – Renee Zaytsev
- Supply Chain/False Claims – Jennifer S. Roach
- Toxic Tort & Environmental Litigation/Green Chemistry & Building Regulatory Compliance – William J. Hubbard
Thompson Hine is committed to being a responsible corporate citizen and to promoting the benefits of sustainability. For example, we are working hard to decrease our environmental footprint by implementing measures such as recycling, double-sided printing, timed lights and other sustainable practices. One larger-scale initiative we have undertaken is a major scanning project to decrease our paper consumption. We scan physical records and files and store them electronically instead of maintaining hard copies in off-site storage locations. In addition, as our office spaces have been renovated, we have followed the U.S. Green Building Council’s Leadership in Energy and Environmental Design (LEED) guidelines. We have incorporated an open-concept design in all our offices, allowing for natural lighting throughout the space. Other features include motion-sensing lighting and HVAC systems.
Diversity, Equity & Inclusion
We have long been dedicated to fostering a culture where diversity, equity and inclusion thrive. Through our Diversity, Equity & Inclusion Initiative and our Spotlight on Women® program, we seek to recruit, retain and advance diverse lawyers and provide the tools and resources they need to grow and succeed in their careers. To enhance our efforts, we implemented a Diversity, Equity & Inclusion Strategic Plan that is specific and contains concrete action steps, measurable metrics and detailed objectives to ensure our progress in these important areas. Our commitment extends beyond our firm into the legal profession and the communities in which we live and work. Examples of the steps we have taken include:
- Implementing an innovative recruiting and hiring model designed to eliminate bias and identify critical traits and behaviors that are indicators of success within our organization.
- Achieving Mansfield 3.0 certification, which measures whether law firms have affirmatively considered at least 30% female lawyers, lawyers of color, lawyers with disabilities and LGBTQ+ lawyers for significant leadership roles, formal pitches, and lateral partner and mid/senior level associate searches. We are currently pursuing Mansfield 4.0 certification.
- Collaborating with our clients and external organizations on initiatives aimed at advancing diversity within the firm and the legal profession overall, including fellowships for diverse summer associates.
- Attaining membership in the Leadership Council on Legal Diversity (LCLD), a group of corporate chief legal officers and law firm managing partners dedicated to creating a truly diverse U.S. legal profession, and annually sponsoring our diverse summer associates and attorneys to participate in the LCLD Scholars, Pathfinders and Fellows programs.
- Collaborating with three Northeast Ohio law schools to establish the Ohio Legal Diversity Consortium to advance the employment, professional development and connectivity of minority law students and junior attorneys through relevant programming, mentoring, mock interviews and other resources.
- Launching our “Stand Against Injustice” initiative, which includes an internal social justice program series examining topics such as racial injustice, discriminatory policing and allyship. We are developing a Social Justice Fellowship to allow up to five of our lawyers to participate in secondments with civil rights and social justice organizations for up to six months, with compensation and benefits paid by the firm during the fellowship.
For more information, please see our Diversity, Equity & Inclusion page.
Thompson Hine’s commitment to pro bono legal work arises from our conviction that pro bono work is a professional obligation of our firm and our lawyers to the communities in which we practice. Pro bono work not only contributes to the public welfare but also helps our lawyers develop as leaders in law and in public service. Our pro bono service includes counseling and representation of clients who could not otherwise afford representation, as well as services in matters involving significant public policy issues.
Thompson Hine provides the same outstanding legal counseling and representation for our pro bono clients that all of our clients expect and deserve. The firm makes all of its resources available in pro bono matters no less than in matters of our other clients. We strongly encourage each of our lawyers and other professionals to participate in our pro bono program.
We strongly believe that it is our responsibility as good corporate citizens to help enrich our communities, and we have a long history of assisting charitable and civic organizations on a firmwide, practice and office basis. We encourage all lawyers and employees to participate in and support programs that positively impact the quality of life for our neighbors and friends. Our attorneys and staff members also serve on the boards of numerous nonprofit and community organizations. For more information, please see this partial list of the organizations Thompson Hine supports with volunteers, sponsorships, donations and other efforts.