On February 28, 2024, the New York Attorney General filed suit against one of the world’s largest beef processing companies (the “Company”), alleging that the Company engaged in deceptive business practices and false advertising by misleading the public about its environmental impact. The People of the State of NY v. JBS USA Food Co., et al., (N.Y. Sup. Ct., N.Y. Cnty. Feb. 28, 2024). Of particular note, the complaint focuses not on statements by the Company about its current environmental impact, or presently measurable facts—instead, the complaint focuses on statements by the Company about its future plans and ambitions that the Attorney General claims were not realistic and not supportable. For instance, the complaint alleges that the Company claimed that it would reach “net zero” by 2040 when, in fact, it had not yet measured its emissions or made plans for how it would do so. While not the first “greenwashing” complaint to be brought, it could be one of the most significant, and could shape expectations for companies going forward.

On March 28, 2023, the Securities and Exchange Commission (“SEC”) submitted a settlement agreement (“settlement”) to the United States District Court of the Eastern District of New York with Brazilian mining company Vale S.A. (“Vale” or “Company”). Under the settlement, without admitting or denying the findings, the Company will pay a total of $55.9 million to resolve charges brought against it by the SEC on April 28, 2022, regarding the Company’s allegedly false and misleading representations in its environmental, social, and governance (“ESG”) disclosures. The SEC averred in its complaint that the Company concealed the unsafe condition of its dams, which caused its ESG disclosures to be materially false and misleading for investors. See SEC v. Vale S.A., Case No. 22-cv-2405-LDH-SJB (Mar. 28, 2023).

On March 4, 2021, the Securities & Exchange Commission (“SEC”) publicly announced the formation of a Climate and Environmental, Social and Governance (“ESG”) Task Force within its Enforcement Division.  This task force was reportedly staffed with 22 Enforcement staff members drawn from SEC headquarters, regional offices and specialized units.  The task force was assembled in response to, among other things, SEC Chairman Gary Gensler’s focus on investigating misstatements related to ESG disclosures.  In remarks by Chairman Gensler on July 7, 2021, he described the SEC as focused on “truth in advertising” and confirming that “funds that market themselves as ‘green,’ ‘sustainable,’ ‘low carbon,’ and so on” were in fact operating consistent with those disclosures.  Approximately 14 months later, the ESG Task Force has announced its debut enforcement action by ordering an investment adviser to pay a $1.5 million fine for alleged misrepresentations related to its ESG practices.