On September 16, 2022, Boyden Gray & Associates partner Jonathan Berry presented on the panel “On the Sidelines or Taking Sides: Corporations, Elections, Social Responsibility and Predictions About Long Term Impacts on Corporate Governance,” at the American Bar Association Business Law Section Annual Meeting. The panel featured Professor Jeffrey A. Sonnenfeld of the Yale School of Management as a keynote presenter.
In his remarks, Berry commented on the political goals of the Environmental, Social, and Governance (ESG) movement in corporate law:
Regulating carbon emissions. Mandating racial or sexual identity diversity over merit. Resisting voter ID laws. These are political goals. They may not seem political to some here today. But they are. Race, sex, elections—these are some of the most inflammatory topics in America today. . . . When the list of political positions companies take lines up with the views of the highly educated, managerial elite and the Democratic Party, it is no wonder why many Americans will view corporate social activism as pretext for partisan activism.
Berry further argued that the fact of ESG’s partisan politics has consequences for the practice of law:
ESG deliberately blurs the line between what the law is and what progressive activists want it to be. As a counselor, you need to have clear eyes distinguishing the two before you bless your client’s taking a political position that outstrips the law. Part of the need for that clear vision is that the law may not actually go the way that the ESG movement wants.
The ESG movement relies on a sense of inevitability to adopt the appearance of being lawful. . . . But the reality is that a lot of this stuff isn’t becoming law. Quite the opposite: ESG faces a growing backlash, legally and politically.
Jonathan Berry is a partner with Boyden Gray & Associates, where he counsels and litigates on regulatory matters relating to corporate and fund governance, including management and workforce diversity, fiduciary duties, and Environmental, Social, Governance (ESG) issues. He previously headed the regulatory office at the United States Department of Labor and served at the United States Department of Justice in the Trump Administration. Mr. Berry previously served as a law clerk to Judge Jerry E. Smith of the United States Court of Appeals for the Fifth Circuit, and to Associate Justice Samuel A. Alito, Jr. of the Supreme Court of the United States.