As we have noted previously, a number of Republican politicians had previously identified antitrust law as a potential counter to ESG efforts, particularly if companies began to coordinate a response to climate change.  Even adherence to a set of third-party principles or standards is potentially problematic in the eyes of some regulators, including state attorneys-general. 

The below article demonstrates that these antitrust concerns raised by politicians are beginning to percolate into the private sector, and to the plaintiffs' bar.  It is altogether possible that private antitrust enforcement may pose a risk to companies who are undertaking coordinated efforts to combat climate change, as such plaintiffs can act even in the absence of government action--and it seems unlikely that the Biden Administration will pursue antitrust actions focused on ESG issues, even if individual states may do so over the next couple of years. 

While a number of potent defenses exist that are specific to private antitrust actions (e.g., standing, etc.), it will be worthwhile to monitor developments in this space--particularly the reaction of the courts to such antitrust/ESG theories, which might be pursued by government regulators under a different administration. 

[In] antitrust litigation . . . [P]laintiffs attorneys are also closely watching one other evolving field: “It’ll be interesting to see what role antitrust plays in combating climate change,” Gregory Asciolla, DiCello Levitt’s New York-based chair of the firm’s antitrust and competition litigation practice, said. “Europe may be ahead in this area.” Ultimately, antitrust enforcers will have to take a look at balancing ambitious prosecution versus permitting some coordination among competitors in the context of saving the planet. “You will likely see more of that, both overseas and here,” said Alexander Barnett, a Cotchett, Pitre & McCarthy partner and president of Committee to Support Antitrust Laws (COSAL). While it is hard to predict specific cases, antitrust litigation in the context of ESG and climate change mitigation efforts will likely see an increase in the near future.