Liability and the evolving litigation landscape
“From corporate liability, there are different routes up to board level, creating potential exposure to climate change- related claims against directors, executives and officers personally,” says James Cooper. “It’s important that the Board can show it has considered potential risks, even those that may seem contingent, taken action to mitigate them where necessary, and crucially, that they have ensured that asset values are represented fairly on balance sheets.” Claims will typically fall into two categories: Wrongful acts (eg mis-representation or omissions of material fact) – Where the value of assets, such as potentially “trapped” oil or gas reserves or property or development land at risk of flooding, is over-stated in financial statements. This could be because insufficient consideration has been given to the future trading environment and likely viability of these assets, or due to confusion over how to report on these assets. As Cooper makes clear: “Misrepresentation is actionable – and just because there’s no international standard on reporting, it doesn’t mean there’s no liability.” Failure of fiduciary duties - Boardmembers have a duty of care to stakeholders such as shareholders, as well as other interested
parties such as employees and local communities or even the international community. Directors, executives and officers could be held liable for failing to prevent their company from causing climate-related damage. Asset managers could face claims if they have purchased stocks without fully considering the risks of a changing climate to their portfolios or who are deemed to have held onto assets too long, where climate change risks subsequently result in sharp price corrections. Even financial advisers could be vulnerable to lawsuits, if they are seen to have failed in their duty of care when carrying out due diligence prior to investments being made, or when audits are subsequently conducted.
Plaintiff firms will continue to test various claims and theories of liability, as they did with tobacco, asbestos and other mass tort claims.
- Ned Kirk, Partner, Clyde & Co, NewYork
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