ESG rhetoric pledge regrets. With ESG becoming as important to some companies as EBITDA and marketing departments ramping up the ESG rhetoric, the effective scope of dutiful oversight has expanded…The Delaware court increasingly sees oversight of all things mission-critical as a board duty.
“For the first time since its landmark Caremark decision, the Delaware Chancery Court has allowed a breach of oversight claim to proceed against a corporate officer when it declined to dismiss claims brought by stockholders against David Fairhurst, McDonald’s former head of human resources…”.[kos] The bottom line is that law and society are expecting better management and oversight—a touch of common sense many would say—and that disappointment (read, shift in expectations leading to anger and disappointment, aka, reputation crisis) is playing out in the courts….Companies and boards need a solid, universally applicable management and oversight process that is forward-looking to manage risk strategically. The quality of that process needs to be proactively authenticated with insurance. Compliance-focused controls, which by design are backward looking—and the audits that authenticate them—are necessary but with the evolving expectations of society, apparently no longer sufficient.
The settlement with Activision Blizzard could have widespread implications for how companies choose to manage risk, according to Nir Kossovsky, CEO of Steel City Re, which provides insurance for reputation and assists companies in establishing risk management functions. Kossovsky said that companies should create “reputation risk leadership committees” composed of representatives from “every silo” of the company that interacts with a critical stakeholder group…“No one can argue with thoughtful risk management and dutiful oversight, but you need a demonstrable, effective process to make that claim.”
All risk is connected. As in Dirk Gently’s world, everything in the risk world is now connected, but without the humor of Douglas Adams. The consequences of operational perils between and among employees—the sorts of things that might have triggered coverage with Employment Practice Liability insurance, is now a matter for derivative litigation and the SEC.
“There is a standard pattern after a major reputational event. It begins with the event that is usually emotionally charged and leaves a lot of people disappointed, and thereafter every different stakeholder group will have their say. Customers will obviously be disappointed, employees will be disappointed, and shareholders will be disappointed,” said Nir Kossovsky, a reputation risk expert. “
ESG-related false advertising litigation. Since the onset of 2021, there have been multiple class actions filed in federal courts over greenwashing claims targeting companies from the retail industry, such as H&M and Allbirds, and food manufacturers, like Vital Farms. The statements attacked by consumers in these lawsuits varied due to the wide-ranging nature of the marketing techniques used by the companies, including the use of internal sustainability metrics as well as the reliance on benchmarks created by third parties.
Carnell and Nir are two of the three speakers who will be delivering the general session titled, “Mitigating the Hazards of ESG-Linked Enterprise Risk,” at the RIMS ERM Conference on November 11th at 11:30 am. This session will explore the value proposition of how to manage ERM to mitigate ESG-linked reputation risk strategically. It will focus on the cultural aspects of rounding up the collaborators from legal and communications and risk insurance. Two of every 3 directors prefer value-creation through an ESG-linked reputation strategy.
Climate-related Financial Risk As part of its work to better tackle climate-related financial risks, the CFTC is considering whether the offsets market is “susceptible to fraud and manipulation.” In their letter, the senators asked the CFTC to develop standards for offsets, investigate cases of potential fraud, and convene a working group to study the risks …
You can never completely prevent litigation over liability due to oversight issues. That being said, steps can be taken to help better defend against these suits, including successfully moving to dismiss, reducing settlement values even after an unsuccessful motion to dismiss, and perhaps even a successful defense at trial, if necessary.
Regardless of one’s moral compass, the practical risks of failing to uphold business ethics are very real, transcending any legal or regulatory requirements. A company’s most valuable asset may be its reputation, yet that asset appears nowhere on the company’s balance sheet. Board members’ oversight of risk management should therefore include reputational risk as a key element, which requires attention to business ethics throughout the company’s activities, both current and planned. This book provides excellent examples — good and bad — that will be instructive for board members in overseeing management of reputational risk.