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Mythical Adverse Effect

The material adverse effect (“MAE”) definition in mergers and acquisitions agreements is one of the most intensely negotiated, litigated, and studied contract provisions ever. It has nearly tripled in average length over the past two decades, as lawyers haggle over …

Sullivan & Cromwell Discusses CFPB Policy Statement on Abusive Conduct

On April 3, 2023, the Consumer Financial Protection Bureau (“CFPB”) issued a policy statement regarding what constitutes an “abusive” act or practice (the “Policy Statement”).[1] The Policy Statement outlines the CFPB’s approach to analyzing whether an act or practice …

Debevoise Discusses White House’s National Cybersecurity Strategy

On March 2, 2023, the White House Office of the National Cyber Director (“ONCD”) released the Biden Administration’s (the “Administration”) long-awaited National Cybersecurity Strategy (the “Strategy”), the first since the Trump Administration’s strategy was issued in September 2018. The Strategy …

The Corporate Governance Cartel

In recent years, major institutional investors in the U.S. have combined their efforts on environmental, social, and governance (“ESG”) matters. Large institutional investors now vote in lockstep on a variety of corporate issues, jointly lead governance initiatives, and often adopt …

Sullivan & Cromwell Discusses ESG Considerations for Financial Institutions in 2023

As U.S. financial institutions assess their ESG risks, opportunities, policies and procedures for 2023, key considerations include the numerous significant ESG developments in 2022—in particular, recent proposals and initiatives announced by financial regulators with respect to climate-related risk management and …

When Will Investors Vote for Socially Beneficial but Costly ESG Policies?  

Investors are increasingly interested in whether firms implement environmental, social, and governance (ESG) policies that, for example, reduce the firms’ carbon footprints, diversify their workplaces, or better protect customers’ private information. Some socially beneficial policies (e.g., improving energy-efficiency) may also …

Kirkland & Ellis Discusses Final Labor Department Regulations on ERISA Fiduciaries and ESG

In recent years, few topics within the U.S. Department of Labor’s (the “DOL”) purview have garnered as much interest as the potential consideration of environmental, social and governance (“ESG”) factors by fiduciaries of plans subject to the U.S. Employee Retirement …