Aneil Kovvali

Abstract

Companies are increasingly expected to publicly report on not only their traditional financial results, but also environmental, social, and governance (“ESG”) issues. Trillions of dollars are being invested with ESG considerations in mind, and boosters urge that ESG investing can address environmental and social impacts that are normally ignored by managers focused on share prices. This raises the question of how companies should be punished if they lie about ESG matters. How should the traditional elements of securities fraud map onto the novel ESG context? Commentators have vigorously debated ESG’s relationship to the materiality element of securities fraud. But the literature has largely overlooked the reliance element. Securities class action plaintiffs normally show reliance using the presumption introduced by the Supreme Court’s decision in Basic Inc. v. Levinson. If a plaintiff can show that a company’s shares trade in an efficient market, share prices are presumed to reflect all publicly available material information about the company. As a result, a material misstatement operates as a “fraud on the market,” and anyone who traded the company’s shares at the market price is presumed to have relied on the misstatement. This presumption makes securities class actions possible by dispensing with the need to prove that every individual plaintiff actually relied on the false information. As ESG disclosures expand, a new wave of litigation powered by Basic is developing.

This Article explores the reliance element of securities fraud and identifies a deep tension between the premises of the ESG movement and the premises of Basic. The advocates who urge corporations to do better on environmental and social matters largely—and justifiably—believe that share prices do not properly reflect corporate performance on those fronts. That belief is difficult to reconcile with Basic’s assumption that material information about a company is reflected in its share price. The Basic presumption could also chill valuable experimentation and voluntary disclosures by companies, and it could absolve institutional investors of the need to actually review and act on ESG disclosures. Counterintuitively, requiring plaintiffs who attack an ESG disclosure to show reliance without using Basic may help advance the goals of the ESG movement, particularly if other enforcers such as the Securities and Exchange Commission step up. These points suggest the need to proactively consider how the Basic presumption should work for ESG misstatements, along with the development of new and creative approaches. By shifting the conversation on ESG disclosures from its current emphasis on materiality to a proper focus on investor reliance and enforcement, this analysis generates fresh and actionable insights.

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