Wilson Sonsini Goodrich & Rosati

Two proposed bills barring public pensions from considering environmental, social, and governance investment criteria create massive legal risk for any pension fiduciary or service provider. The American Legislative Exchange Council “boycott bill” and the “fiduciary duty” bill, if adopted, would impose irreconcilable legal requirements on such fiduciaries, and subject them to compliance with arbitrary and unworkable legal demands. The main legal problems the bills create fall into four categories: (1) the unworkable distinction between “pecuniary” and “non-pecuniary,” a distinction so blurry that the bills are self-contradictory, as we demonstrate; (2) the clash between the bills’ definition of materiality and that established by the Supreme Court of the United States, such that state law would bar consideration of investment information that federal law requires; (3) similarly vague and self-contradictory requirements to boycott companies that engage in ESG, and (4) the transfer of control of proxy voting to elected officials, thereby ensuring the politicization of such voting in direct conflict with the bills’ stated goals.The boycott bill and the fiduciary duty bill dramatically increase liability risk for plan fiduciaries and service providers without providing any corresponding or even off-setting benefits to fiduciaries or their members. They will reduce the number of service providers willing to work with such pensions, increase liability, insurance, and investment costs for taxpayers, and fund participants and beneficiaries. They should be rejected.

Technology's impact on competition in the financial services sector is profound. It has changed the competitive landscape by laying the ground for new financial products and services offered by…

There is a rapidly growing international movement of youth-led climate change litigation aimed at getting governments to take faster, more ambitious steps to respond to climate change. A core argument advanced in many of these cases is that an inadequate or slow response by governments violates the equality rights of both youth and future generations. Emerging lawsuits filed in Canada since late 2018 have placed this matter – and the interpretation of section 15(1) of the Charter - squarely before the Courts, marking the first Canadian installments in youth-led climate litigation. Historically, claimants have had limited success with equality claims in Canada. This is in because the Supreme Court has struggled to land on a definitive test for section 15(1), focusing inconsistently on issues such as disadvantage, human dignity and arbitrariness. This paper discusses the application of section 15(1) to the context of age-based climate discrimination, drawing insights from Supreme Court equality jurisprudence and academic commentary, as well as the approach taken by climate change litigants and courts in other jurisdictions. We analyze a set of issues that arise when applying section 15(1) to the context of a youth-based climate claim, including: (1) how different ways of framing the government conduct being challenged impacts the analysis; (2) how the courts evaluate discrimination based on age, and whether future generations are part of age or a distinct, analogous ground; (3) the separation of powers and justiciability; and (4) the potential remedies. We also discuss a number of related questions, such as the evidentiary burden on plaintiffs and the role of international principles such as intergenerational equity, though in less depth. Our analysis leads us to conclude that there is a compelling argument that government conduct related to climate change constitutes unjustifiable age-based discrimination, regardless of which iteration of the section 15(1) test is used. The “present-bias” of public climate policies has depleted, and continues to deplete, Canada’s carbon budget for the 21st century and there is irrefutable scientific evidence that, as a result, youth and future generations will bear a disproportionate burden of a destabilized climate simply by being born later in time. We reflect on the larger implications of climate change litigation and its potential to rejuvenate equality jurisprudence in Canada.

With the adoption of the 2020 Vertical Merger Guidelines, the U.S. antitrust agencies have updated their guidance on vertical mergers for the Twenty-First Century. Although economists have long recognized the procompetitive benefits most vertical mergers generate, the law has not always followed suit, and has sometimes condemned vertical mergers for making the merged firm more efficient. In this article, we attempt to catalogue the extensive list of efficiencies that vertical mergers can generate, trace the often halting efforts to incorporate these insights into the law, and propose a framework that courts and agencies can use to assess the likely competitive effects of vertical transactions. We draw heavily upon leading cases, particularly Baker Hughes and AT&T, with two refinements. First, consistent with the final Guidelines (but not the earlier draft) and the economic literature noting a symmetry between unilateral anticompetitive effects (raising rivals’ costs) and procompetitive effects (the elimination of double marginalization), which we call the “unilateral effects tradeoff,” we argue a plaintiff alleging a raising rivals cost (RRC) theory of harm must also address EDM as part of its prima facie case. Second, if the plaintiff carries its prima facie burden, then the defendant should be able to argue, and courts and Agencies should seriously consider, the full range of procompetitive efficiencies, which we call a “holistic efficiency analysis.”

Ceremonie virtuelle des Antitrust Compliance Awards 2021, organises par Concurrences. Les laureats ont ete annonces par William E. Kovacic (Professeur, King's College London/George Washington University…