ESG 또는 지속가능성 정보 공시와 관련한 증권법상 책임에 관한 연구 : 미국의 이론과 사례 및 그 시사점을 중심으로

Modern investors including major institutional investors are shifting their focus towards attaching more weight to sustainability or ESG factors of the companies they invest in. In keeping up with this changing trend in the investing community, the issuing companies are disclosing ESG information in a variety of ways. Given that ESG information has a material impact on investors as much as financial information, there is need to hold issuing companies accountable for ESG statements which are found to be false or misleading. In this context, courts and financial authorities could get useful insights from relevant U.S. case law regarding ESG misrepresentations. First, the liability arising out of Rule 10(b)-5 which is most commonly invoked by investors who take issue with ESG misrepresentations is not limited to formal SEC filings. In this respect, issuing companies which make ESG statements by means of voluntary informal reports, press releases, investor conferences and press conferences can be exposed to liability for ESG misrepresentations. When it comes to the form of ESG statements, the code of ethics or code of conduct gets traction because it can also be subject to Rule 10(b)-5 liability despite its vague and aspirational nature. Second, it can be assumed that a number of ESG statements are characterized as puffery or forward-looking statements which are not subject to Rule 10(b)-5 in terms of the nature, tone or tense of ESG statements. However, it should be noted that even forward-looking statements or opinions can be subject to Rule 10(b)-5 when the statements or opinions are predicated on past achievements or present specific facts. Also, even future projections or commitments can be actionable under Rule 10(b)-5 when they incorporate measurable targets and timelines. Third, ESG misrepresentations are often called into question against the backdrop of environmental disasters or safety incidents which the issuing companies give rise to. In that scenario, the companies are likely to be exposed to liability especially when they conceal or manipulate material information as to the damages or the casualties in the process of responding to the disaster or incident.