The Rise of ESG Enforcement

By Anne M. Eberhardt, CFE, CAMS, Senior Director

The Foreign Corrupt Practices Act (FCPA) was barely enforced for most of its first thirty years of existence. Then, just before the onset of the Great Recession, boom – down came the hammer on companies suspected of violating the FCPA, and zeal for enforcement has only grown in the past fifteen years, with no sign of diminishing.

Born in the wake of the Watergate scandal, the FCPA emerged amid concerns about the moral standing of U.S. companies operating abroad during the height of the Cold War. Following the Enron catastrophe, Congress passed the Sarbanes-Oxley Act, and within a few years, the FCPA was dusted off and repurposed as a tool to help address concerns of corporate malfeasance in a rapidly globalizing economy.

As anxiety has mushroomed over the negative effects of globalization, public policy advocates are calling for the expansion of law enforcement efforts to address issues such as human trafficking, racial and gender inequity, and climate change.

SEC Chair Gary Gensler recently announced plans to introduce new climate-related and human capital rules for publicly-traded companies in an effort to increase adherence to environmental, social, and governance – or “ESG” – targets.

With the revolution in data analytics and electronic documentation over the past fifteen years, compliance monitoring – and enforcement – are more feasible than ever before. It’s certain to be an interesting time as companies struggle to develop policies and procedures to measure compliance with the latest – and expanding – set of government regulations designed to promote aggressive social justice goals.