Robert Azarow
Partner
Erik Walsh
Counsel
Paul Nabhan

Over the last several years, investors, regulators and other stakeholders have sought an increase of environmental, social and governance (ESG) disclosures by public companies.

The U.S. Securities and Exchange Commission (SEC) has taken a cautious approach to developing uniform ESG disclosure requirements, but made a series of public statements and took preliminary steps this year indicating that it may soon enhance its climate-related disclosure requirements for all public companies, including financial institutions. To that end, the SEC’s spring 2021 agenda included four ESG-related rulemakings in the proposed rule stage, noting October 2021 for a climate-related disclosure proposed rule. The SEC is also sifting through an array of comments on its March 15 solicitation of input on how the Commission should fashion new climate disclosure requirements.

Recent speeches by Chair Gary Gensler and Commissioners Allison Herren Lee and Elad Roisman highlight some of the key elements of disclosure likely under consideration by the staff, as well as their personal priorities in this area. Commissioner Lee has asserted that the SEC has full rulemaking authority to require any disclosures in the public interest and for the protection of investors. She noted that an issue also having a social or political concern or component does not foreclose its materiality. Commissioner Lee has also commented on the disclosure of gender and diversity data and on boards’ roles in considering ESG matters.

Commissioner Roisman has noted that standardized ESG disclosures are very difficult to craft and that some ESG data is inherently imprecise, relies on continually evolving assumptions and can be calculated in multiple different ways. Commissioner Roisman has advocated for the SEC to tailor disclosure requirements, and phase in and extend the implementation period for ESG disclosures. Meanwhile, Chair Gensler has also asked the SEC staff to look at potential requirements for registrants that have made forward-looking climate commitments, the factors that should underlie the claims of funds marketing themselves as “sustainable, green, or ‘ESG’” and fund-naming conventions, and enhancements to transparency to improve diversity and inclusion practices within the asset management industry.

Significance for Financial Institutions
In the financial services industry, the risks associated with climate change encompass more than merely operational risk. They can include physical risk, transition risk, enterprise risk, regulatory risk, internal control risk and valuation risk. Financial institutions will need to consider how their climate risk disclosures harmonize with their enterprise risk management, internal controls and valuation methodologies. Further, they will need to have internal controls around the gathering of such valuation inputs, data and assumptions. Financial institutions therefore should consider how changes to the ESG disclosure requirements affect, and are consistent with, other aspects of their overall corporate governance.

Likewise, financial institutions should also consider how human capital disclosures align with enterprise risk management. Registrants will not only need to ensure that the collection of quantitative diversity data results in accurate disclosure, but also how diversity disclosures might affect reputational risk and whether any corporate governance changes may be needed to mitigate those concerns.

We recommend that financial institutions consider the following:

  • Expect to include a risk factor addressing climate change risks, and for the robustness and scope of that risk factor to increase.
  • Consider disclosing how to achieve goals set by public pledges, as well as whether the mechanisms to measure progress against such goals are in place.
  • Expect ESG disclosure requirements to become more prescriptive and for quantitative ESG disclosures to become more sophisticated. Prepare to identify the appropriate sources of information in a manner subject to customary internal controls.
  • Establish a strong corporate governance framework to evaluate ESG risks throughout your organization, including how your board will engage with such risks.
  • Incorporate ESG disclosures into disclosure controls and procedures.
  • Consider whether and how to align executive compensation with relevant ESG metrics and other strategic goals.
WRITTEN BY

Robert Azarow

Partner

Rob Azarow is a partner at Arnold & Porter and heads the financial institutions transactions practice.  He has extensive experience advising banks and other financial institutions on their most important transactional, corporate governance and regulatory matters.  Mr. Azarow’s experience includes serving as lead corporate, transaction and regulatory counsel on financial institution mergers & acquisitions, financial asset acquisitions, branch purchases, joint ventures and collaboration agreements with fintech companies and other non-bank financial services providers, takeover defense strategies, and acquisitions of failed financial institutions and distressed assets from the FDIC.

 

Mr. Azarow has extensive experience with public and private offerings of equity, debt and hybrid securities, securities law compliance and related disclosure matters including how to incorporate ESG disclosures and the impact of ESG issues on investor activism.  Mr. Azarow has assisted financial institutions with their regulatory compliance matters, including response to examination issues, capital management and growth activities.

WRITTEN BY

Erik Walsh

Counsel

Erik Walsh is counsel at Arnold & Porter. He represents financial institution clients in enforcement, compliance and regulatory matters before the federal and state banking agencies, Department of Justice, and the Office of Foreign Assets Control (OFAC). He regularly represents domestic and foreign institutions in government and internal investigations, particularly in matters involving Bank Secrecy Act/anti-money laundering (BSA/AML) compliance, OFAC sanctions compliance and bank fraud. Mr. Walsh regularly advises clients on BSA/AML and OFAC policies and procedures as well as on bank examination preparation and remediation. Mr. Walsh has a background in litigation and appellate work on behalf of a wide variety of clients.

Mr. Walsh is a former senior counsel and assistant vice president in the enforcement, litigation, police, investigations and corporate affairs division at the Federal Reserve Bank of New York. During his time there, he led enforcement investigations against financial institutions and employees, including significant matters involving violations of OFAC regulations and FX market manipulation.

WRITTEN BY

Paul Nabhan