The attorneys consider how present collaborations involving environmental, social and governance (ESG) initiatives are impacted by the withdrawal of long-standing “protected harbor” steerage concerning how rivals might safely have interaction in data sharing and benchmarking efforts coupled with the approaching adjustments to the merger tips.
“There’s been a push for broader collaboration amongst rivals by trade working teams or commerce associations—with the objective to determine frequent requirements or finest practices for ESG initiatives,” the attorneys write. “It is doable for such efforts to be pro-competitive and useful, however there are additionally inherent antitrust considerations when rivals work collectively to develop trade requirements and finest practices.”
Dulani and Smith additionally observe that “on this extremely charged enforcement atmosphere, corporations contemplating or concerned in ESG collaboration direly want antitrust steerage.” They supply perception on the safeguards corporations ought to take into account, together with:
- The main focus of ESG initiatives don’t implicate pricing, bids, market or buyer allocation, or boycotts of suppliers or rivals.
- The procompetitive advantages of the collaboration are documented and quantified.
- All trade group or commerce group conferences observe antitrust finest practices, with a written agenda, assembly minutes, and antitrust compliance assertion—and are carried out within the presence of antitrust counsel.
- No competitively delicate knowledge is shared between members. Any knowledge for benchmarking ought to be given solely to an impartial third get together, and any outcomes ought to be anonymized.
- Keep away from necessary phrases. Every participant ought to make their very own impartial resolution on whether or not to undertake any ensuing ESG insurance policies, benchmarks, requirements, finest practices, codes of conduct or objectives.
Dulani’s apply consists of competitors disputes, class actions, mergers and acquisitions, authorities investigations and different complicated litigation. He represents shoppers earlier than the Division of Justice and Federal Commerce Fee in merger and conduct investigations, in addition to False Claims Act-related litigation, and he advises on antitrust danger and compliance and on vertical enterprise preparations.
Smith’s apply focuses on complicated enterprise litigation, leveraging her robust authorized presence to guard her shoppers’ pursuits and advance key enterprise objectives. She has in depth expertise in antitrust litigation. Her antitrust expertise additionally consists of counseling shoppers on compliance issues and aiding on offers and pre-merger actions.
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