December 15, 2022
Volume XII, Number 349
December 15, 2022
– False Claims Act: Prediction on Supreme Court Ruling on Government…by: Lori A.Rubin and Pauline R.Wizig
– Proxy Season Greetings: ISS and Glass Lewis Announce Policy Updates…by: Colleen Hart and Andrea S Rattner
– Supreme Court Declines to Clarify FCA Pleading Standard by: Scarlett Singleton Nokes and Virginia C.
Wright
– Full Speed Ahead: District Court Entitled to Explore Litigation…by: Amol Parikh
– Economically Motivated Adulteration in Honey by: Food and Drug Law at Keller and Heckman
– China Announces New Management Measures for Food-Related Products by: David J.Ettinger and Eric Gu
– Ratings Agencies Increase Focus on “Green Ratings” by: Jacob H.
Hupart
– Increased Federal Attention to Skilled Nursing Facility Compliance…by: Anne M.Murphy and Rachel Hold-Weiss
– European Commission to Start Adequacy Decision Adoption Process for…by: Hunton Andrews Kurth’s Privacy and Cybersecurity
– Applying Collateral Estoppel in IPRs by: Alexandra Cavazos, PhD
– Appellate Court Addresses How Much Information Employee Must Submit…
by: Tasos C.Paindiris and David Mohl
– Improving Liquidity Through Real Estate Sale and Leaseback…by: Simone Wijngaard and Alexander van Hövell
– The Ultimate Lawyer Time Off Checklist by: Kamron Sanders
– PTO Announces Cancer Moonshot Expedited Examination Pilot Program by: Bernard P.Codd
– Do Law Firms Use HubSpot? by: CRM News and Updates, Lawmatics
– Litigation Minute: Year in Review—Trending Topics Across the 2022…
by: Lindsay Sampson Bishop and Jacquelyn S.Celender
– The State of ESG Reporting in Australia by: Clive Cachia and Adam Levine
– Supreme Court to Hear Case on Whether Lawsuits are Stayed During…by: Ron Chapman, Jr.and Zachary V.
Zagger
December 14, 2022
– Certain Green Cards Getting 24-Month Extensions as USCIS Deals With…by: Michael H.Neifach
– Ankura CTIX FLASH Update – December 13, 2022 by: Ankura Cyber Threat Investigations and Expert Services
– Australia: Climate and Sustainability-Related Financial Disclosure…by: Jim Bulling
– Ankura CTIX FLASH Update – December 9, 2022 by: Ankura Cyber Threat Investigations and Expert Services
– New Washington State Guidance A Reminder That More State Pay…by: Aaron Vance
– Washington Supreme Court Affirms Ecology’s Authority to Bypass…
by: Erika H.Spanton and Allyn L.Stern
– NLRB Unleashes New Damages Against Labor Law Violators by: Mark J.Neuberger
– Illinois Appellate Court Weighs in on Biometric Data Policies by: David M.Poell and Kari M.
Rollins
– FTC Issues Green Guides Questionnaire by: Phyllis H.Marcus
– Traveling for the Holidays: Planning for Successful International…
by: Ann H.Lee and Michael J.Bonsignore
– NYC Council Considering Proposal To Significantly Limit At-Will…by: Evandro C Gigante and Joseph C O’Keefe
– Webinar Recording: Navigating Today’s Privacy Compliance…
by: Cynthia J.Larose
– Pennsylvania Takes Emergency Action to Regulate Conventional Oil…by: David J.Raphael and Brianna K.Edwards
– A Look At The Upcoming European Unitary Patent And Unified Patent…by: Angela B.
Freeman, M.S.and Rory P.Pheiffer
– Massachusetts Unveils New Workplace Poster, Notifications for…by: Rachel Reingold Mandel and Ashley Prickett Cuttino
– US Executive Branch Update – December 14, 2022 by: Stacy A.Swanson
– Michigan Court of Appeals Hears Argument on the Adopt and Amend…by: Luis E.Avila and Maureen Rouse-Ayoub
– California Wage and Hour Issues for Employers to Watch in 2023: Is My…
by: Karen E.Wentzel and Michael W.Kelly
– AML Bill Key to Busting Russian Oligarchs by: Stephen M.Kohn and Grace Schepis
– SEC and CFTC Whistleblower Programs Reveal Continued Success…by: Jason Zuckerman and Matthew Stock
– Prices Keep Rising: Labor Board Significantly Expands Remedies…by: David J.Pryzbylski and Aaron Vance
– More on Understanding the Medicare Overpayment Appeals Process by: Kendall R.
Walker and Courtney G.Tito
– New York State Provides Protection for Use of Leaves of Absence by: Jonathan A.Wexler
– US Executive Branch Update – December 13, 2022 by: Stacy A.Swanson
– Looking Ahead to 2023: Pay Transparency Developments by: Allan S Bloom and Evandro C Gigante
– What Does 2023 Hold for California COVID-19 Supplemental Paid Sick…
by: Benjamin A.Tulis
– AND ANOTHER ONE! TCPA CLASS DISCOVERY LIMITED: Third Party Subpoena…by: Jenniffer Cabrera
– Reminder: New Tax Forms for Retirement Plan Payment Withholding…by: Jeffrey M.Holdvogt and Diane M.Morgenthaler
– Ninth Circuit Answers Lingering Question on Scope of ‘Autodialer…
by: Joseph C.Wylie II and Nicole C.Mueller
– Speak Out Act Takes Effect, Enhanced Data Privacy Obligations for…by: George Carroll Whipple, III
– Preparing for New SBA Certification Requirements for Veteran-Owned…
by: Erin L.Toomey and Frank S.
Murray
– California Starts Mandating Employee Bereavement Leave in 2023 by: Paul R.Lynd
– HHS Bulletin: Covered Entities’ Disclosure of PHI Collected via…by: Ryan P.Blaney and Danielle L.Brooks
– When 2 Minus 1 Still Equals 2: Combining Lots in a Planned Community by: Dana M.Lingenfelser and Kristin D.Mitcham
– GREAT LEGAL WORK: TCPA Defendant Wins a HUGE Certification Victory…by: Eric J.
Troutman
– 401(k) Compliance Check #12: Don’t Borrow Trouble – Correcting…by: Belinda S.Morgan
– FDA Published Food Safety Culture Literature Review by: Food and Drug Law at Keller and Heckman
– Does a business have to provide a privacy notice directly to a…by: David A.
Zetoony
– New Privacy Enforcement Act Commences in Australia by: Cameron Abbott and Rob Pulham
– NYC Delays Enforcement of Automated Employment Decision Tools Law to…by: Lindsay Colvin Stone
– U.S.Department of State to Update Design on Nonimmigrant and…by: Ashley K.Kerr
– Cannon Fire: Newly-Famous Judge Stays All Discovery in TCPA Class…by: Eric J.Troutman
– EPA Announces Proposed RFS for 2023-2025, Will Hold Public Hearing in…
by: Lynn L.Bergeson and Carla N.Hutton
– Why Do Law Firms Need CRM? by: CRM News and Updates, Lawmatics
– This California Rule by: Keith Paul Bishop
– Unintended Consequences: Legal Compliance Concerns With Long-Term…by: Amber K.
Dodds and Robert S.Nichols
– UK Parliament Considers Retained EU Law (Revocation and Reform) Bill…by: Emma Thomson
December 13, 2022
– DOL Issues Final Rule Amending Investment Duties Regulation –…
by: James Frazier
– Third time lucky or Schrems III? The European Union Data Pact with…by: Diletta De Cicco and James Downes
– Renewed Era of Crypto Assets Growth in Hong Kong by: Jay Lee
– Division I Universities Must Be Ready for Changes to the NCAA…by: Paul V.Kelly
– U.S.Supreme Court Hears Oral Argument in Case Testing Limits of…by: Michelle E.Phillips and Christopher M.
Repole
– Damages in Pre-Certification Discovery are Premature, Discovery…by: Jenniffer Cabrera
– When Chains Change, Do NFTs Stay The Same? How Hard Forks May Affect…by: Jason H.Finger
– COVID-19: A Roadmap to Fraud Investigations: Office of Inspector…by: Stephen D.Bittinger
– DOJ Settlement with Electronic Health Records Provider Highlights…by: Ty E.
Howard and Lane M.Webster
– Update: OFCCP Plans to Disclose EEO-1 Data for Non-Objecting…by: Abby M.
Warren
– Increasing US Enforcement Action for Sanctions Violations by Crypto…by: Hannah Laming and Adam Klauder
– DOJ Antitrust Division and HHS OIG Enter into Partnership to Increase…by: Diane Hazel
– Can Discovery Be Compelled from a Party? Possession, Custody, Control…by: Kathryn C.
Cole
– Weekly Bankruptcy Alert December 13, 2022 by: Bankruptcy & Creditors’ Rights
– California’s Newly Adopted “Safe Harbor” Warning Label for Acrylamide…
by: Taryn McPherson and Whitney Jones Roy
– Considerations for Public Company Bylaw Amendments in View of the New…by: Frank M.Placenti and Doron Lipshitz
– All Things Chemical® Podcast: TSCA Regulation of Articles: The Saga…by: Lynn L.
Bergeson
– Telecom Alert: Providers Support 10-10.5 GHz NPRM; FCC Blocks Student…by: Jaimy “Sindy” Alarcon and Jim Baller
– New DOL Rule Enables Consideration of ESG Factors in Investing, Plus…by: Johnjerica Hodge and Danette R.Edwards
– Energy & Sustainability M&A Activity — December 2022 by: Thomas R.
Burton, III and Sahir Surmeli
– Court Holds NC State Health Plan Constitutes “Health Program or…by: Caroline Turner English and Alison Lima Andersen
– Energy & Sustainability IP Updates — December 2022 by: Brad M.Scheller
– Another Block Falls: BlockFi Files for Chapter 11 Protection,…by: David A.
Lopez-Kurtz and Alex J.
Albers
– SEC Reopens Proposal on Stock Buyback Rules by: Erin Reeves McGinnis
– IRS Announces 2023 Increases to Estate and Gift Tax Exclusions by: Katlyn E.Koegel and Stephen C.Rohr
– FDA Letter States that β-Nicotinamide Mononucleotide is Not Lawful…by: Food and Drug Law at Keller and Heckman
– New York City’s Automated Employment Decision Tools Law Enforcement…by: Adam S.
Forman and Nathaniel M.Glasser
– Chips Chatter: December 5-12, 2022 by: Pablo E.Carrillo and Ludmilla L.Kasulke
– FTC Releases Tentative Agenda for December 14 Open Commission Meeting by: Hunton Andrews Kurth’s Privacy and Cybersecurity
– How Many Behavioral Advertising Trackers Do Websites Deploy Currently? by: David A.Zetoony
– FRB Proposes Climate-Related Financial Risk Management Principles by: Daniel Meade
– Energy & Sustainability Litigation Updates — December 2022 by: Jacob H.Hupart
– Investor-State Arbitration: 2022 ICSID Rule Amendments and Update on…
by: Joseph J.Mamounas and Claudia D.Hartleben
– Warning Sign? A New Round of FDA Warning Letters Over CBD Consumer…by: J.Hunter Robinson and Josh Kleppin
– Cross Border Recognition, 25 years on: the view from each side of the…by: Michelle N.
Saney
– A New Era of Technology in the Private Markets by: Louis Lehot and Christopher Converse
– New York City Postpones Enforcement of Automated Employment Decision…by: Simone R.D.Francis
– New Law Seeks To Curtail Coerced Debts by: Keith Paul Bishop
– Republican SEC Commissioners Continue to Criticize Proposed Climate…by: Jacob H.Hupart
December 12, 2022
– Raters gonna rate…but there’s a bright side! by: Daniel B.
Guggenheim
– SEC Awards More than $20 Million to Whistleblower by: Mary Jane Wilmoth
– Duty to Preserve Evidence Covers Climate Review by Higher Educational…by: Monica H.Khetarpal and Laura A.Ahrens
– Preliminary Determination of Circumvention Regarding Solar Energy…by: Gregory Husisian and John E.
Turlais
– Estate Planning for Football Season Ticket Holders by: Katherine M.Szymanski and Rebecca K.Wrock
– Associate Attorney General Vanita Gupta Issues Statement on 2021 FBI…by: United States Department of Justice (DOJ)
– NLRB General Counsel Proposes Lower Standard for Requiring Employers…
by: Adam C.Abrahms and Steven M.Swirsky
– American Hospital Association Urges DEA to Issue Special Registration…by: Nathaniel M.Lacktman
– EPA Announces $25.7 Million in Grants to Support Water Systems in…
by: EPA
– New York State Expands Workplace Protections for Nursing Employees by: Evandro C Gigante and Laura M.Fant
– Weekly IRS Roundup December 5 – December 9, 2022 by: Tax Practice Group McDermott Will Emery
– CMS Announces Strategy on Value-Based Payments for Specialty Care by: Anahita Anvari
– DOL Proposes Self-Correction Option and Other Changes to Voluntary…by: Justin S Alex
– The City of Los Angeles’ Fair Work Week Ordinance Requires…by: Tomi Oshita
– Considering Using Biometric Information? Adopt a Biometric Policy Now by: Mike H.Holland and Patrick J.
McMahon
– Recent Developments in Telehealth Enforcement by: Sara Helene Shanti and Danielle Vrabie
– ESG INVESTING AND PROXY VOTING: DOL’S NEW FINAL RULE by: Kristina M.Zanotti and Ruth E.Delaney
– IN A NEW YORK MINUTE, Telemarketing Laws Are Changing! by: Angelika Munger
– Fa-La-La Laws: Employer Liability Issues for Office Holiday Parties by: Katharine O.Beattie and Victoria Stockton Breese
– More Places, Less Spaces: California is Driving Down Development Costs by: Amanda S.Lee
– Bereavement Leave Becomes Mandatory in the Golden State by: Kaleb N.Berhe
The State of ESG Reporting in Australia
Whilst there has been a marked improvement in the aspirations of Australia’s leading companies with respect to environmental, social and governance (ESG) reporting over the last few years, we expect the requirements for more comprehensive and standardised reporting will only continue to grow.
There are a number of “push” and “pull” factors which will spur this trend.
PUSH FACTORS – THE RISE OF REGULATION
There are number of current Australian mandatory reporting requirements in ESG such as:
For environmental – under the National Greenhouse and Energy Reporting Act 2007, under conditions to Commonwealth and State environmental and planning approvals and under the recently introduced Climate Change Act 2022.
For social – workers’ rights under Commonwealth and State industrial relations and work health and safety legislation; various discrimination and equal opportunity laws and modern slavery reporting under the Modern Slavery Act 2018 (Cth) and the NSW equivalent for state-owned corporations.
For governance – under the ASX Listing Rules, pursuant to the ASX Corporate Governance Principles and Recommendations, and disclosure obligations of directors and financial reporting obligations under legislation and common law.
There are also various voluntary ESG disclosures commonly made by Australian companies such as:
Particular social risk disclosures – e.g., the Global Reporting Initiative, the UN Guiding Principles on Human Rights and the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises.
Particular climate risk disclosures – e.g., in accordance with the Sustainability Accounting Standards Board and the Taskforce on Climate-Related Financial Disclosures.
Industry based reporting frameworks – e.g., Principles for Responsible Investment requiring asset owners and investment managers to meet minimum annual reporting requirements.
Reconciliation Actions Plans.
Net zero commitments and aspirational targets.
However, these requirements have been developed on a sporadic and fragmented basis.This has led to companies developing ESG compliance policies and practices which differ markedly and focus on short-term effects rather than on long-term risk and opportunities.
This fragmentation enables “greenwashing” in which corporates can disclose compliance with certain standards to give a misleading impression of compliance with other, more rigourous, standards.Interested stakeholders (investors, employees, customers, suppliers and local communities) are demanding increased oversight and transparency on the effects of ESG matters on companies’ financials and regulators are being compelled to act.These demands have belatedly been supported by current proposed comprehensive and standardised regulatory developments.
Such regulatory developments include:
The International Sustainability Standards Board is preparing a definitive suite of global disclosure standards by merging various national voluntary ESG frameworks including those referred to above.
Such globalised standards are expected to be formalised by the end of 2022 and are proposed to require all entities (regardless of industry and geographic location) to disclose significant ESG-related risks and opportunity that can reasonably be expected to affect that entity’s enterprise value.
The European Financial Reporting Advisory Group and the Securities and Exchange Commission in the United States have also proposed new sustainability and climate reporting principles and standards.
Concurrent bespoke sector developments such as:
The Australian Sustainable Finance Initiative (to align Australia’s financial systems with the Paris Agreement’s commitments on climate change, the UN Development Goals and conventions on human rights).
The Responsible Investment Association of Australasia providing certification of responsible and ethical investment products and services.
Fair Farms Initiative providing horticultural and agricultural organisations with information and training to promote ethical supply chains.
PULL FACTORS – COMPARATIVE COMPETITION
Operating alongside regulatory compliance, forward-thinking companies are seeing the comparative advantages in disclosing not only the impact they have on the economy, environment and people, but also the effect such ESG matters have on their enterprise value and various financial metrics.
This 360 degree view of ESG serves to better demonstrate how an organisation is responding to these pressures.
The focus on financial data necessarily overcomes the tendency to report motherhood-statements and requires a level of detail promoting authenticity in disclosures and accountability against targets.
The investment community has clearly articulated the need for such accountability when deciding where to invest.
With close to AU$1 trillion in assets under management, Australia’s institutional investors (particularly superannuation funds) have the financial firepower to compel rigorous responses to ESG issues by investee companies.They do this by deciding whether to invest, making investment conditional on ESG-related remediation and reporting, active stewardship of an investee’s operations with respect to ESG matters and making specific impact investments.With competition for investment only increasing, companies will need to demonstrate they have the systems in place to minimise risks affecting investors’ capital.
NEXT STEPS
These push and pull factors are driving a virtuous circle of ESG plans and reporting both locally and internationally and particularly with respect to any remediating any actual or perceived shortfall.
The upcoming round of international standardisation of reporting standards offers a convenient opportunity for those corporates whose reporting may be lacking in detail, consistency or ambition to regain momentum in the drive for competitive advantage..