The Meaning of Sustainability for Today’s Corporations: How In-house Counsel Should Advise their Board on Fiduciary Duties

20 May 2010 11:30 a.m. - 01:30 p.m.

Morrison & Foerster LLP
425 Market Street
San Francisco, CA 94105
Genevieve Oransky

ACC Cleantech Committee Meeting
“Sustainability” is often defined as development that meets the needs of the present without compromising the ability of future generations to meet their own needs.  From a corporate perspective, “sustainability” can refer to a variety of different initiatives - from corporate social responsibility (CSR) programs to environmental compliance.  However, as more corporations view their sustainability initiatives less as an outgrowth of philanthropy and more as a critical component of operations, issues of fiduciary duty can arise. 
Typically, sustainability can be embraced by boards and management because it has a positive impact on the bottom line.  Converting to products that are more energy efficient saves energy and reduces carbon emissions.  Ensuring that a corporation’s suppliers have a plan to reduce carbon and water use now and in the future just makes good business sense.  It can be argued that other sustainability programs, like the purchase of carbon credits ahead of regulatory requirements and  a mandatory change to purchasing policy to embrace more environmentally friendly products, may enhance reputation but do not have a short-term positive impact on shareholder value.  Funding for these programs may be approved because they are in the best interests of the corporation longer term under the business judgment rule.  But the rubber hits the road when the amounts being spent become material line-items and when there is a direct trade-off between profitability and sustainability.
Join us for a lively discussion of whether the views of boards and management are actually changing with respect to sustainability.  What is the impact on fiduciary duties?  Can it be argued that some elements of a sustainability program are now required and corporations will face greater liability in the future if they do nothing to address them today?
Sheila Bonini of McKinsey & Company will discuss the results of a recent survey conducted on “How Companies Manage Sustainability.”  Although most corporate executives think sustainability is an important aspect of corporate strategy, most companies are not actively managing sustainability, according to the survey.  Ms. Bonini will offer insight into the state of sustainability initiatives, where sustainability matters most for the average company, what hurdles companies face, and what differentiates sustainability leaders.  She will also discuss her research on the financial value creation potential of sustainability and CSR activities.
Next, Irving Gomez of Intel Corporation will discuss Intel’s recent decision to amend its Corporate Governance and Nominating Committee charter to include “corporate responsibility and sustainability performance” reporting.  Intel’s decision to amend its charter was influenced by a stockholder proposal that was seeking a separate committee on sustainability.  Mr. Gomez will discuss what factors led to Intel’s decision, what the charter amendment means in practice, and suggestions for how other companies approach the issue internally. 
The session will conclude with a robust roundtable discussion involving audience members on topics such as:

  • the influence of shareholder resolutions
  • how the law is likely to develop in this area and in what time frame
  • the benefits and risks of various sustainability measures
  • how to advise your board on issues of fiduciary duty issues today


  • Irving S. Gomez, Senior Attorney & Assistant Secretary, Corporate Legal Group, Intel Corporation
  • Sheila Bonini, Senior Expert, McKinsey & Company
  • Jackie Liu, Partner, Morrison & Foerster LLP (Roundtable moderator)
Morrison & Foerster LLP (Provider #2183) certifies that this activity has been approved for MCLE credit by the State Bar of California in the amount of 1.0 hour(s).




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