As the world moves toward the end of the first quarter of the 21st century, companies around the globe find themselves under increased pressure from stakeholders and the communities in which these organizations operate to address major global challenges: climate change, sustainability, socioeconomic inequality among them. And what has become clear is that meeting these challenges will require collaboration that includes the public and private sector, not least to agree on principles and set measurable standards.[1] There have been efforts in some industries in the United States to seek common ground and work together. Yet increased scrutiny and vocal criticism by the U.S. federal and state legislators and regulators has, understandably, unsettled those passionately committed to moving forward on necessary and beneficial corporate ESG initiatives.

In 2019, for example, the U.S. Department of Justice (“DOJ”) conducted an investigation into a consortium of four automakers working together with the California Air Resources Board to reduce carbon emissions from automobiles.[2] Officials at the Justice Department sought to determine whether this agreement between competitors was collusive, and thus, would reduce available options and/or increase prices for consumers—a litmus test for most antitrust cases.[3] Importantly, the case was dropped in 2020, when the DOJ told the automakers they violated no laws.[4] More recently, in March, 2023, twenty one Republican states’ Attorneys General sent a strongly-worded letter to all major asset managers arguing that their ESG initiatives conflicted with their fiduciary duties to their clients and their compliance requirements under U.S. antitrust laws.[5]

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