Is There No ESG Exemption?

In recent congressional testimony, FTC Chair Lina Khan definitively declared that there is no ESG antitrust exemption. How can companies avoid violating the antitrust laws while still complying with demands from their shareholders and other constituents to conduct business consistent with policies that are environmentally and socially sensitive, and promote good public policy? David Shaw, a partner at Morrison & Foerster, and Derek Jackson, an associate at Cohen & Gresser, join Christina Ma and Melissa Maxman to discuss the intersection between ESG and the Sherman Act. Listen to this episode to learn more about whether existing antitrust exemptions, such as Noerr-Pennington, can affect business decisions about ESG.

With special guests:

David J. Shaw, Partner, Morrison & Foerster and Derek Jackson, Associate, Cohen & Gresser LLP

Related Links:

• Jens Hackl, Sustainability and Antitrust – What Companies Need to Know About Sustainability Collaborations in Europe (Feb. 28, 2022)
• The ESG Movement and Its Impact on Antitrust Compliance (July 7, 2022)
• Oversight of Federal Enforcement of the Antitrust Laws, Subcommittee on Competition Policy, Antitrust, and Consumer Rights, Senate Judiciary Committee (Sept. 20, 2022) (note that discussion of ESG starts with questions from Sen. Hawley at 1:58:54 through 2:00:02 and picks up again with questions from Sen. Cotton at 2:02:42 through 2:05:35.)
• 3rd Circ. Won't Revive Shell Egg Buyers' Antitrust Suit 

Hosted by:

Christina C. Ma, Partner, Wachtell, Lipton, Rosen & Katz and Melissa H. Maxman, Partner, Cohen & Gresser, LLP