Australian Securities and Investments Commission v Mercer Superannuation (Australia) Limited

The case was filed on Sept. 13, 2023, by the Australian Securities and Investments Commission ("ASIC") against Mercer Superannuation (Australia) Limited ("Mercer"), alleging that Mercer violated the Australian Securities and Investments Commission Act 2001 ("ASIC Act") §§ 12DB(1)(a), 12DF(1). The sections respectively ban false or misleading representations in trade, and conduct that "is liable to mislead the public as to . . . the suitability for their purpose . . . of any financial services." Mercer, in offering a category of investment options known as the “Sustainable Plus” investment options, published online videos during four different periods between Nov. 12, 2021, and Mar. 1, 2023, and posted three website statements for some overlapping and continuous periods covering Jan. 25, 2022, to Mar. 1, 2023. The published materials described the "Sustainable Plus" option as "exclud[ing] companies involved in alcohol production, carbon intensive fossil fuels, gambling and pornography." The statements were available with other statements emphasizing the sustainability and ESG credentials of Mercer. However, from Nov. 12, 2021, to Mar. 1, 2023, the "Sustainable Plus" option had exposure to up to 15 companies involved in the extraction or sale of carbon-intensive fossil fuels, 15 companies involved in the production of alcohol, and 19 companies involved in gambling. Mercer admitted the contraventions of the ASIC Act arising from its statements. As a result, the parties jointly sought to resolve the case by pecuniary penalties, adverse publicity orders, and costs orders. Based on the agreement, Justice Horan ordered, on Aug. 2, 2024, that Mercer pay a penalty of $11,300,000, pay the cost of proceedings, and publish a notice about their false and misleading conduct on its website for 6 months. In explaining its orders, the court additionally acknowledged that conduct of this kind is "greenwashing," which is a "key regulatory and enforcement priority by regulators."