TheCorporateCounsel.net

If you’re an investment grade issuer & want to lower your cost of capital the next time you go to market, this Politico article says you’d be well advised to use the money to fund ESG related projects, as Alphabet and Visa have recently done. This excerpt says there’s simply not enough ESG product to meet market demand:

This is a big year for investment-grade corporate debt — fueled in part by actions the Federal Reserve took in March allowing large companies to borrow more cheaply from private lenders. But the vast majority is not aligned with environmental, social and governance principles, said Jonny Fine, head of Investment Grade Syndicate at Goldman Sachs who played an integral role in the Alphabet deal. “The proportion of ESG this year is no different. It’s a very small part of our market overall,” Fine said. “The only difference we’re seeing in 2020, because we’ve had health care crises and racial divisions across the U.S., is the S in ESG has become much more important.”

So far this year, companies have issued nearly $1.5 trillion in new investment-grade debt. Less than 2 percent of that adheres to ESG standards. This reflects a problem in financial markets, Fine added. Right now, there aren’t enough ESG assets to satisfy demand from investors, who clamored for the bonds issued by Alphabet and Visa. Companies need to develop sustainability frameworks so they don’t miss out on the wave of cheap financing. “There is a very clear cost of capital disadvantage for a company that doesn’t have strong ESG principles,” Fine said.

Granted, Alphabet & Visa are both premium credits, but the pricing on their ESG-related debt was pretty phenomenal. Alphabet issued $5.75 billion at 0.8%, while Visa raised $500 million at 0.75%.

Unicorn IPO Litigation: Hung Up by Happy Talk?

One of my favorite snarky things to do is to make fun of Unicorn IPO filings. I know the poor lawyers involved must pull their hair out over some of the over-the-top statements that the underwriters & business folks insist on including in the prospectus, but a federal court’s decision in Uber’s IPO litigation may give those lawyers more leverage when arguing to tone things down.

This excerpt from a recent Jim Hamilton blog on a California federal judge’s denial of Uber’s motion to dismiss the case explains how the company’s prospectus “happy talk” made the plaintiffs’ claims stickier than they might otherwise have been:

The purchaser alleged that Uber’s registration statement omitted material facts about the legality of Uber’s business model, its passenger safety record, and its financial condition. Uber countered that each of these three categories was adequately disclosed, and the court agreed that the disclosures were well beyond boilerplate. Given the facts alleged, however, the court also concluded that the offering documents created an impression of a state of affairs that was materially different from what actually existed.

Specifically, Uber represented that while it had faced trouble in the past, it was on “a new path forward.” Despite this optimistic impression, the purchaser plausibly alleged that Uber was still using its old “playbook,” continuing, for example to view pay fines for violating local laws as a cost of doing business and intentionally delaying layoffs and restructuring to mislead the markets. Thus, the court said, what was disclosed was not enough to render what was not disclosed not misleading.

Mind you, the court reached this conclusion despite the fact that Uber’s lawyers included a 48-page Risk Factors section addressing many of these issues.

What’s in a Name? Hester Peirce is Okay with “Crypto Mom” Moniker

SEC Commissioner Hester Peirce was just reconfirmed by the Senate – along with new Commissioner Caroline Crenshaw. On the occasion of her reconfirmation, one intrepid tweeter (@BarbarianCap) asked if she was okay with her “Crypto Mom” nickname. In response, she tweeted: “It’s better than a lot of other names I have been called.” Me too, Commissioner, me too.

– John Jenkins