The Biden-Harris Administration has not only identified Environmental, Social, and Corporate Governance as an administration priority, but also has prioritized increased enforcement of the antitrust laws. Certain ESG activities—especially those that bring together competitor companies—may give rise to antitrust risk. The fact that such conduct might occur for ESG purposes does not automatically immunize the conduct from antitrust scrutiny. As a former head of the Antitrust Division of the Department of Justice has noted: “The loftiest of purported motivations do not excuse anti-competitive collusion among rivals.” So, it is vital that companies engaged in ESG activities remain mindful of avoiding antitrust pitfalls.
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