ESG Litigation & Enforcement Tracking
December 9, 2024 | Juliana, et al. v. United States of America, et al. (Supreme Court)
Twenty-one youth plaintiffs filed a petition for writ of certiorari in the U.S. Supreme Court seeking review of the Ninth Circuit’s May 1, 2024 order instructing the district court to dismiss the suit without leave to amend. The petition presents two questions: (1) When plaintiffs have established that their ongoing injuries are traceable to the defendants’ policies and practices, does Article III require a particularized factual determination of whether a federal agency or official will redress the plaintiffs’ injuries following a favorable declaratory judgment that resolves the constitutional controversy? (2) Are there exceptions to the three demanding conditions for mandamus articulated in Cheney v. U.S. District Court for District of Columbia, 542 U.S. 367, 380–81 (2004). The petition asks the court to hold the petition pending the Court’s opinion in a separate matter, and then grant, vacate, and remand the case to the Ninth Circuit for further proceedings.
December 2, 2024 | Center for Biological Diversity v. City of Pittsburg, et al., No. N24-2162 (California Superior Court, County of Contra Costa)
The plaintiff filed a petition for writ of mandate and complaint for declaratory and injunctive relief in California state court alleging that the City of Pittsburg certified an environmental impact report (EIR) that failed to disclose or adequately analyze negative environmental impacts on biological resources, wildfires, community safety, GHG emissions, water quality, water supply, traffic, and noise for the Pittsburg Technology Park Specific Plan. The plaintiff requests, among other things, writs of mandate directing the respondents to vacate and set aside certification of the EIR, writs of mandate directing the respondents to comply with the California Environmental Quality Act (CEQA), a temporary stay, a temporary restraining order, preliminary and permanent injunctions, and a declaration that certifying the EIR and approving the project violated CEQA and CEQA guidelines.
November 6, 2024 | Organic Consumers Association v. Mission Produce Inc., No. 2024-CAB-006996 (D.C. Superior Court)
A nonprofit organization sued an avocado producer pursuant to the D.C. Consumer Protection Procedures Act, claiming that the company wrongly markets its avocados as being sustainably sourced when in fact, the complaint alleges, its sourcing practices contribute to illegal deforestation, water scarcity, climate change, biodiversity and habitat loss, and other negative environmental consequences in Mexico. The organization brings the case on behalf of the general public of D.C. and D.C. avocado consumers. The organization does not seek monetary damages, but does seek declaratory and injunctive relief requiring the defendant to stop advertising its products as “sustainable.”
October 4, 2024 | Organic Consumers Association v. Calavo Growers Inc., No. 2024-CAB-006328 (D.C. Superior Court)
A nonprofit organization sued an avocado producer and distributor on behalf of D.C. consumers alleging false and deceptive advertising in the sale of avocado products under the D.C. Consumer Protection Procedures Act. The complaint alleges that on its website, Calavo wrongfully markets its avocado products as being “sustainable” and “better for the planet” and represents the company’s commitment to “long-term ecological balance, environmental soundness, and social equity.” The plaintiff alleges that Calavo’s sourcing practices contribute to climate change, deforestation, water shortages, biodiversity and habitat loss, and other negative environmental consequences in the avocado-growing regions of Michoacán and Jalisco, Mexico. The action seeks declaratory and injunctive relief, as well as attorneys’ fees, but no money damages.
October 22, 2024 | Eisner v. Meta Platforms Inc., et al., No. 3:24-cv-02175 (Northern District of California)
The Northern District of California granted Meta and Mark Zuckerberg’s motion to dismiss the plaintiff’s amended complaint brought under Section 14(a) of the Securities Exchange Act. The plaintiff alleged that Meta made misleading statements in its 2024 proxy statement about its efforts to protect children from sexual predators, and as a result he suffered economic loss by virtue of bringing this action. The court found that much of the information the plaintiff argued Meta should have disclosed was available to the public and rejected his argument that he need not allege economic loss because he sought only injunctive relief. The court maintained the conclusion it reached in its earlier denial of the plaintiff’s motion for preliminary injunction that many of Meta’s proxy statements were inactionable “broad policy affirmations or aspirational statements.”
October 25, 2024 | Beyond Pesticides v. The Scotts Miracle-Gro Company, No. 2024-CAB-006782 (D.C. Superior Court)
A nonprofit public interest organization filed suit against a lawn and garden fertilizer products manufacturer alleging false and deceptive marketing and sales of its EcoScraps fertilizer. The plaintiff alleges that the representations on the product packaging that the fertilizer is “eco friendly” and “sustainable” are deceptive because the plaintiff’s testing of the products revealed they contain PFAS from contaminated sewage sludge. The plaintiff brings claims under the D.C. Consumer Protection Procedures Act and seeks declaratory and injunctive relief.
October 30, 2024 | The People of the State of California v. PepsiCo Inc., et al., No. 24STCV28450 (California Superior Court, Los Angeles)
Los Angeles County sued beverage manufacturers PepsiCo and Coca-Cola, alleging that they misrepresented the environmental impact of single-use plastic beverage containers and misled consumers into falsely believing that recycling could offset associated environmental harms. The complaint alleges that the defendants represented themselves as “sustainable” companies and marketed the single-use bottles as “recyclable” and “made to be remade” despite knowing that plastics cannot be readily disposed of without associated environmental impacts. The complaint brings state claims for public nuisance, unfair competition, and untrue or misleading advertising and seeks injunctive and declaratory relief, restitution, civil penalties, and costs. On December 2, 2024, the defendants removed the case to the Central District of California under federal question and federal officer jurisdiction (No. 2:24-cv-10340).
September 24, 2024 | Conservation Law Foundation Inc. v. Moore, No. 24-cv-03770 (Vermont Supreme Court)
The plaintiffs filed a citizen suit under Vermont’s Global Warming Solutions Act (GWSA). The suit alleges that the state’s secretary of natural resources has not complied with her duties under the GWSA, including conducting public hearings and using technically sound data to support rulemaking decisions. The suit asks the court to determine whether new or amended rules are necessary to achieve the statute’s requirement that the state reduce its greenhouse gas emissions by at least 26% below 2005 levels by 2025.
September 9, 2024 | Kouyate v. NUK USA LLC, No. 1:24-cv-04020 (Northern District of Georgia)
The plaintiffs filed a proposed class action complaint against NUK USA LLC, asserting that the company has falsely advertised a line of pacifiers as made from “100% sustainable silicone.” In fact, the complaint alleges, the pacifiers have a negative impact on the natural resources used to create them and on the environment. Specifically, the plaintiffs point to (1) the product’s manufacturing process, which requires intensive mining operations; (2) its distribution, which requires transportation in greenhouse-gas-emitting trucks and planes; and (3) its disposal processes, noting that silicone is not recyclable, reusable, or biodegradable.
July 19, 2024 | Plastic Pollution Coalition v. Danone Waters of America LLC, No. 2024-CAB-004562 (D.C. Supreme Court)
A nonprofit advocacy organization filed a complaint against the maker of evian bottled water, alleging false and deceptive marketing in violation of District of Columbia consumer protection law. The complaint alleges that Danone Waters promotes evian as “natural” and “healthy” while a laboratory evaluation found microplastics and bisphenol A in the bottled water products. The complaint also alleges that Danone misleads consumers by advertising its products as “100% recyclable” and “made from 100% recycled plastic” despite the company’s ongoing contributions to plastic pollution through its reliance on single-use plastic packaging.
July 12, 2024 | Gyani v. Lululemon USA Inc., No. 1:24-cv-22651 (Southern District of Florida)
A consumer filed a putative class action complaint alleging that athleisure fashion company Lululemon created its Be Planet “greenwashing” marketing campaign to mislead customers to believe the company’s business practices and products were sustainable. The complaint alleges that Lululemon’s marketing campaign messages (such as promises to “become a more sustainable and equitable business [and] minimize its environmental impact”) are unfair, false, deceptive, and misleading because the company is responsible for significant greenhouse gas emissions, landfill waste, and the release of microplastics into the environment. The complaint brings claims for violations of the Florida Deceptive and Unfair Trade Practices Act, misleading advertising under Florida law, and unjust enrichment.
June 14, 2024 | Western New York Youth Climate Council v. New York State Department of Transportation, No. 808662/2024 (New York Supreme Court)
The petition challenges the New York State Department of Transportation’s (NYSDOT) consideration of greenhouse gas emissions and climate change impacts in its review of the NYS Route 33 Kensington Expressway Project in Buffalo. Specifically, the suit alleges that the NYSDOT violated the state’s Climate Leadership and Community Protection Act and the New York State Constitution by misrepresenting the climate impacts, including increased greenhouse gas emissions, associated with the project.
May 10, 2024 | State of Texas; State of Louisiana; State of Utah; State of West Virginia v. Securities and Exchange Commission, No. 23-60079 (5th Circuit)
The Fifth Circuit dismissed for lack of standing a petition for review brought by Texas, Louisiana, Utah, and West Virginia challenging a final rule of the SEC requiring funds to disclose their votes on ESG matters. The rule went into effect on July 1, 2024. The states argued that they had standing because the states themselves suffer injury as investors in funds subject to the rule, because the funds will pass the costs of the rule on to all investors, and because of the states’ “quasi-sovereign” interest in their citizens’ economic well-being. The court found that the states did not establish standing to bring the petition for review and dismissed the petition without prejudice.
April 5, 2024 | Strickland v. United States Department of Agriculture, No. 2:24-cv-00060 (Northern District of Texas)
A group of Texas farmers filed a motion for a preliminary injunction or, in the alternative, relief under 5 U.S.C. § 705 in the Northern District of Texas against the U.S. Department of Agriculture (USDA) challenging eight disaster relief programs managed by the USDA. They allege in the complaint that the USDA discriminated based on race and sex by creating a category of farmers defined strictly by race and sex, classifying those farmers as “socially disadvantaged” and then using different methods for calculating the amount and type of financial assistance. The plaintiffs seek an immediate injunction or stay halting the consideration of social disadvantage in the distribution of aid. On June 7, the court granted the motion in part and denied the motion in part. The court held that the defendants are enjoined from making or increasing payments or providing additional relief based on its definition of socially disadvantaged farmer or rancher. However, the USDA may still apply progressive factoring on future relief applications if done independently of the protected classes “race” and “sex.”
March 15, 2024 | Liberty Energy Inc. v. Securities and Exchange Commission, No. 24-60109 (5th Circuit)
The Fifth Circuit Court of Appeals granted an administrative stay of the Enhancement and Standardization of Climate-Related Disclosures for Investors Rule on March 15, 2024 in response to the petitioners’ emergency motion for administrative stay and stay pending judicial review filed on March 8, 2024. The petitioners argued the stay was warranted because they are likely to prevail on the merits, the rule is arbitrary and capricious, the rule violates the First Amendment by mandating disclosures and effectively mandating discussing climate change, and the petitioners have suffered irreparable harm in the form of unrecoverable compliance costs and constitutional injuries.
On March 22, 2024, the court ordered transfer of the petition to the Eighth Circuit for consolidation and dissolved the administrative stay.
March 6, 2024 | West Virginia v. Securities and Exchange Commission, No. 24-60109 (11th Circuit)
Ten states petitioned for review of the Enhancement and Standardization of Climate-Related Disclosures for Investors Rule, alleging that the rule exceeds the statutory authority of the SEC and is otherwise arbitrary, capricious, an abuse of discretion, and not in accordance with law. The petitioners requested that the court declare the final rule unlawful and vacate the SEC’s final action.
February 28, 2024 | People of the State of New York v. JBS USA Food Company, No. tc240228-23 (New York Supreme Court)
The New York State AG filed a complaint in New York state court alleging that JBS USA Food Company, the largest producer of beef in the world, made unsubstantiated and misleading environmental marketing claims about its commitment to reducing greenhouse gas emissions in violation of New York State’s consumer protection laws. The suit notes that beef production contributes significantly to climate change and alleges that JBS’s “Net Zero by 2040” claims are misleading because the company’s greenhouse gas emissions calculations fail to account for significant Scope 3 emissions related to the company’s supply chain land use. The suit asks the court to enjoin JBS from violating the state’s consumer protection laws, order JBS to disgorge profits traceable to the unsubstantiated claims, grant civil penalties, and perform independent audits of all JBS’s consumer-facing publications.
February 26, 2024 | Chattooga Conservancy v. United States Department of Agriculture, No. 1:24-cv-00518 (District of D.C.)
The Chattooga Conservancy filed a complaint against the U.S. Department of Agriculture and the U.S. Forest Service under the National Environmental Policy Act, alleging that the agencies failed to assess the direct, indirect, and cumulative effects of logging projects authorized to fulfill annual national timber targets. The complaint asks the court to block the agencies from offering further timber sales in fiscal year 2024 and from implementing the remaining commercial timber harvest efforts for authorized projects.
February 21, 2024 | Spence v. American Airlines Inc., No. 4:23-cv-00552 (Northern District of Texas)
The Northern District of Texas denied a motion to dismiss filed by American Airlines that sought to dismiss the class action complaint alleging American Airlines breached its fiduciary duty under the Employee Retirement Income Security Act (ERISA) by investing its employees’ retirement savings with funds pursuing ESG goals and strategies, rather than focusing exclusively on maximizing financial benefits.
January 25, 2024 | Porter v. GrafTech International Ltd., No. 1:24-cv-00154 (Northern District of Ohio)
A purchaser of common stock filed a putative securities class action under the Securities Exchange Act against graphite electrode product manufacturer GrafTech, alleging that the company’s materially false and misleading statements and omissions caused him and class members to suffer significant losses and economic damages. The complaint alleges that GrafTech made claims in IPO offering materials promoting the “more environmentally friendly” steelmaking employed by its customers as key to its claimed sustainability initiatives when its facility operations had allegedly contaminated neighboring communities.
November 13, 2023 | Simijanovic v. Koninklijke Luchtvaart Maatschappij N.V., No. 2:23-cv-12882 (Eastern District of Michigan)
A customer filed a proposed class action against Koninklijke Luchtvaart Maatschappij N.V., operating as KLM Royal Dutch Airlines, in the United States District Court for the Eastern District of Michigan for allegedly misleading claims related to claims of environmental benefits related to its use of biofuels and carbon offset program. The complaint alleges that KLM’s claims are deceptive because they are unqualified and imply that the benefits are significant when they are negligible. The consumer alleges that plaintiff paid more for flying on KLM than he otherwise would have had he known its representations and omissions about its environmental efforts were false and misleading.
November 20, 2023 | Don Keenan v. The State of Oklahoma and Todd Russ, in his capacity as the Treasurer of the State of Oklahoma, No. CV-2023-2762 (District Court of Oklahoma County)
A retired employee of the Oklahoma Employment Securities Commission filed a Verified Petition in the District Court of Oklahoma County on November 20, 2023, alleging that the Energy Discrimination Elimination Act of 2022, Okla. Stat. tit. 74 § 12001 (the “Act”) is unconstitutional. The employee alleges that the Act requires companies, including financial institutions, who do business in the state to affirm that they do not and will not boycott energy companies or the state will cease doing business with the financial institution and divest the state’s holdings from the financial institutions.
November 19, 2023 | Alexander Zajac v. United Airlines, Inc., No. 8:23-cv-03145 (District of Maryland, Southern Division)
A consumer filed a proposed class action against United Airlines in the U.S. District Court in the District of Maryland, Southern Division alleging, among other things, that United Airlines’ description of alternative aviation fuels from biomaterials as “sustainable” is misleading. The consumer alleges fraud and violations of the Maryland Consumer Protection Act.
October 13, 2023 | GMO Free USA d/b/a Toxin Free USA v. Cava Group, Inc., 2023-CAB-006356 (D.C. Superior Court)
Anti-GMO citizen group Toxin Free USA filed suit against D.C.-based Mediterranean restaurant Cava Group, Inc., claiming false and deceptive marketing practices. The suit alleges that Cava markets its food as “healthy” and its business as “sustainable” when in fact certain food products contain synthetic biocide/pesticide residues and certain food packages contain man-made per- and polyfluoroalkyl substances (PFAS). Cava filed a motion to dismiss the suit in November 2023.
October 26, 2023 | State of Utah v. Walsh, No. 2:23-cv-00016-Z (Northern District of Texas)
26 State Attorneys General and private plaintiffs have appealed a decision from the Northern District of Texas upholding the Department of Labor’s ERISA regulations regarding ESG considerations in investing. The underlying rules, which took effect February 1, 2023, allowed financial fiduciaries to consider “the economic effects of climate change and other environmental, social, or governance factors” rather than only “pecuniary factors” when making investment decisions. The Northern District of Texas held that the rules are a reasonable exercise of the Department’s authority, that they changed little in substance regarding a fiduciary’s duties, and that the Department adequately explained its reasoning in issuing the regulations. The State Attorneys General appealed the decision to the Fifth Circuit Court of Appeals on October 26, 2023.
August 25, 2023 | Spence v. American Airlines Inc., No. 4:23-cv-00552 (Northern District of Texas)
A pilot filed an amended proposed class action complaint against American Airlines alleging that the defendant breached its fiduciary duties in violation of ERISA by managing its 401(k) plan for pilots with investment options that consider ESG policy goals. The plaintiff alleges that the majority of his plan portfolio is managed by a publicly traded investment management firm that has joined Climate Action 100+ and has advocated for ESG and sustainable investing. The plaintiff brings claims for breach of the duties of loyalty and prudence and to monitor fiduciaries, and seeks a declaratory judgment that American Airlines has violated ERISA, a permanent injunction, and attorneys’ fees and costs.
August 14, 2023 | Dougherty v. Kohl’s Inc., No. 2:23-cv-00456 (Eastern District of Wisconsin)
June 22, 2023 | Charles v. Church & Dwight Co. Inc., No. 1:23-cv-02528 (Eastern District of New York)
Plaintiff consumers voluntarily dismissed two separate proposed class actions advancing claims of unjust and deceptive practices, unjust enrichment, fraud, and breach of express warranty, among others, for alleged misrepresentations and “greenwashing” in marketing of certain consumer products. (1) On August 14, 2023, a consumer voluntarily dismissed a proposed class action filed against Kohl’s Inc. for alleged misrepresentations of bedsheets being made from environmentally friendly bamboo fibers; (2) on June 22, 2023, a consumer voluntarily dismissed with prejudice a proposed class action filed against manufacturing company Church & Dwight Co. Inc. alleging “greenwashing” and misrepresentation in marketing laundry detergent as environmentally friendly.
May 3, 2023 | Long v. The Kroger Co., No. 1:23-cv-01179 (Central District of Illinois)
A customer filed a proposed class action complaint against The Kroger Co. in the Central District of Illinois claiming that labeling of eggs as “farm fresh” and “Grade A” allegedly misled consumers to believe the eggs were from hens not confined in cages. The plaintiff brought claims under the Illinois Consumer Fraud and Deceptive Business Practices Act and state consumer fraud acts, as well as claims for breach of express warranty, implied warranty, negligent misrepresentation, fraud, and unjust enrichment. The plaintiff also contended that in allegedly misleading customers that its eggs are cage-free, Kroger reneged on its ESG and sustainability commitments to animal welfare.
February 22, 2023 | Texas v. Securities and Exchange Commission, No. 23-60079 (5th Circuit).
February 24, 2023 | Press Release, Paxton Sues Biden Administration to Terminate Illegal SEC Rule That Will Hurt Financial Companies and Their Investors, Texas Office of the Attorney General.
Texas, Louisiana, Utah, and West Virginia filed a petition in the Fifth Circuit Court of Appeals petitioning the court to review and set aside the Securities and Exchange Commission’s Final Rule, Enhanced Reporting of Proxy Votes by Registered Management Investment Companies; Reporting of Executive Compensation Votes by Institutional Investment Managers. The Texas attorney general published a press release highlighting the petition and asserting that the SEC rule amends the proxy vote reporting form, Form N-PX, to expand the number of voting categories in order to further the political agenda of the Biden Administration. The press release also claimed that the new rule would increase compliance costs and pressure funds to take actions that run contrary to the best interests of their investors.
February 22, 2023 | O’Keefe v. Sequoia Capital Operations LLC, et al., No. 1:23-cv-20700 (Southern District of Florida)
The plaintiffs filed a class action in the Southern District of Florida alleging that the defendants, which include banks, venture capital firms, accounting firms, and a California-based law firm, conspired with FTX to perpetrate fraud by, among other things, performing sham audits of FTX’s primary entities, certifying that efficient controls were in place, and providing non-routine, high-risk banking services to FTX and promoting FTX despite knowing that it was misappropriating funds.
February 21, 2023 | Braun v. Walsh, No. 2:23-cv-00234 (Eastern District of Wisconsin)
Two 401-K plan participants filed a complaint in the Eastern District of Wisconsin challenging the U.S. Department of Labor’s final rule, Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights, and seeking a preliminary and permanent injunction. The complaint alleges that the new rule violates ERISA and exceeds the authority granted to the Secretary of Labor by permitting and encouraging plan administrators to consider ESG factors when making investments on behalf of plan beneficiaries.
February 28, 2023 | State of Utah, et al. v. Walsh and United States Department of Labor, No. 2:23-cv-16-00016 (Northern District of Texas)
Twenty-six states along with five private plaintiffs, including a publicly traded energy company and a nonprofit trade association, filed a complaint in the Northern District of Texas challenging Prudence and Loyalty in Selecting Plan Investments and Exercising Shareholder Rights, the final rule promulgated by the Department of Labor published on December 1, 2022. The complaint alleges that the rule undermines protections for retirement savings by allowing consideration of ESG factors, oversteps the Department of Labor’s authority under ERISA, and is arbitrary and capricious.
January 17, 2023 | Bhatia, et al. v. Thome, et al., No. 23STCV00999 (California Supreme Court, Central District of L.A.)
Equity investors in a company called TBSL filed a complaint in the Superior Court of California alleging that the defendants convinced investors to invest in TBSL by fraudulently holding itself out as a for-profit humanitarian organization and assuring investors that TBSL was a sustainable business dedicated to serving humanitarian efforts to end child hunger.
November 24, 2022 | Doe v. Deutsche Bank, et al., No. 1:22-cv-10018 (Southern District of New York) and Doe v. JP Morgan Chase & Co., No. 1:22-cv-10019 (Southern District of New York)
Two proposed class actions were filed in the Southern District of New York against Deutsche Bank and JP Morgan Chase & Co. alleging that the defendants financially benefited from participating in Jeffrey Epstein’s sex trafficking operations. Specifically, the plaintiffs allege violations of federal sex trafficking statutes and the Racketeer Influenced and Corrupt Organizations Act (RICO).