The Lone Star State — and Trump — versus BlackRock

Yahoo

2 days ago

The Trump administration has waded into a politically charged Texas-led legal fight to dilute US financial giants' alleged influence over corporate America.
Last week, the US Justice Department and the US Federal Trade Commission filed a joint "statement of interest" siding with Texas Attorney General Ken Paxton and 10 other Republican-led states in an antitrust case against trillion-dollar asset managers BlackRock (BLK) and its rivals State Street (STT) and Vanguard.
The charge: Using their substantial stock holdings, BlackRock and its rival financial firms coordinated a "left-wing ideological" attack on US coal companies, pressuring coal producers Arch Coal, Black Hills, and Peabody to cut coal production in the South Powder River Basin and thermal coal markets, the DOJ and FTC said in the court filing. The decreased output, they said, harmed US consumers by artificially inflating energy prices.
"Carbon reduction is no more a defense to the conduct alleged here than it would be to price fixing among airlines that reduced the number of carbon-emitting flights," the DOJ and FTC said in the statement supporting the states' claims.
The states allege that the financial firms agreed to reduce output through commitments to carbon-reduction organizations Net Zero Asset Managers Initiative and Climate Action 100+.
They also say disclosures from the defendants and public statements show that they engaged directly with coal company executives in efforts to influence production levels, and they used their voting power when engagement fell short of meeting those goals.
As large yet minority shareholders, the complaint claims, the defendants have more influence than their formal equity share.
The actions extend beyond shareholder advocacy and passive investing by furthering their own "green energy" or net-zero goals, rather than the goals of the coal corporations, in violation of Section 1 of the Sherman Act and Section 7 of the Clayton Act, the challengers claim.
The agencies' effort to have the administration's perspective considered in the case, despite not being a party to the dispute, has drawn criticism from the defendants and others.
On Wednesday, Campaign for Accountability (CfA), a nonpartisan nonprofit watchdog organization, accused the administration of targeting the money managers for political rather than law enforcement reasons. The group filed a Freedom of Information Act Request asking the agencies to disclose communications underlying their decision to weigh in on the case. CfA was co-founded in 2015 by Anne Weismann, former head counsel for the watchdog group Citizens for Responsibility and Ethics in Washington.
"This case isn't about antitrust law, but about conservative opposition to even recognizing the risks of climate change," CfA executive director Michelle Kuppersmith said. "Americans deserve to know who is influencing the FTC to use its antitrust authority to attack political opponents."
Meanwhile, Derek Mountford, an antitrust partner at Gunster, said the lawsuit's rhetoric also signals political motivation. But, he added, it could ultimately answer an unsettled antitrust question over how competition law applies to the actions of asset managers with significant ownership interests in competing companies. Should asset managers and index fund providers, for example, be treated differently under the law than individuals and businesses that offer products and services and control multiple firms within a singular market?
"If one individual owns a significant interest in three competing companies, alarm bells start going off in your head that there could be some anticompetitive conduct going on," Mountford said.
Although the BlackRock scenario isn't as cut and dried, he said, concerns have been bubbling about the competitive role that institutional shareholders are allowed to play, compared to companies and suppliers that can more directly influence market competition.
"This case is going to represent a much clearer answer to that question than I think we've gotten in any other case of its kind," Mountford said.
BlackRock asked for a judge to dismiss the case and accused the administration of trying to "re-write" antitrust law under an "absurd" theory that the coal companies conspired with them to reduce production outputs. "Forcing asset managers to divest from coal companies will harm their ability to access capital and invest in their businesses and employees, likely leading to higher energy prices," the company said in a statement.
BlackRock CEO Larry Fink made a series of disengagements from the company's environmental, social, and governance (ESG) initiatives as bipartisan concerns spread over the financial giant's power to sway US markets. Fink publicly stated in June 2023 that he would cease using the politically sensitive acronym "ESG" because it had been "weaponized" by both the ideological right and the left.
In January, before President Trump took office, the financial giant cut ties with UN-backed Net Zero Asset Managers Initiative (NZAM), an environmental advocacy group that pledged net-zero carbon emissions by 2050.
The administration's legal filing came roughly six months after a GOP-controlled House Judiciary Committee issued a report accusing the three money managers of using their financial clout to force US coal companies to "decarbonize" and reach net zero.
According to the report, the money managers forced coal companies to disclose and reduce carbon emissions through negotiations, stockholder proxy resolutions, and the replacement of directors at "recalcitrant companies."
Democrats have also criticized the financial firms' outsized influence over US markets, but for different reasons. Sen. Bernie Sanders (D-Vt.), a vocal critic of the megamanagers' influence, described the group's stock ownership in 95% of S&P 500 (^GSPC) companies an "oligarchy." Sanders, along with Sen. Elizabeth Warren (D-Mass.) also criticized BlackRock for declining to use its weight to intervene in a coal mining labor dispute.
Gunster's Mountford said the federal government's decision to weigh in on a state AG-initiated case is unusual but becoming increasingly more prevalent.
"It's not something that courts have had to wrestle with, where you have the DOJ weighing in on these types of cases," he said. "It's a pretty new phenomenon, and it's one that Trump sort of pioneered ... and continued during the Biden administration."
"I think," he added, "it's here to stay."
Alexis Keenan is a legal reporter for Yahoo Finance. Follow Alexis on X @alexiskweed.