Enterprise Legislation Prof Weblog


Two latest posts that could be associated:

On Tuesday, Vivek Ramaswamy posted The ESG Fiduciary Hole on The Harvard Legislation College Discussion board on Company Governance.  In that publish, he famous that:

BlackRock is presently below investigation for antitrust violations exactly due to its coordinated ESG activism via teams like Local weather Motion 100+, Web Zero Asset Managers, and Glasgow Monetary Alliance for Web Zero. Vanguard and State Avenue are members of lots of the identical teams. In actual fact, till just lately, as Arizona’s Lawyer Common has noticed, “Wall Avenue banks and cash managers [were] bragging about their coordinated efforts to choke off funding in vitality.” U.S. antitrust statutes are broad by design. They forbid opponents from getting into into any settlement with the aim or possible impact of decreasing provide in a related market. Right here, via these teams, BlackRock is cooperating with its opponents to make concerted efforts to lower marketwide output in fossil fuels. That’s no secret; it’s the very goal of those organizations. Web Zero Asset Managers, for instance, makes clear that it has an “expectation of signatories” like BlackRock to pressure a “speedy section out of fossil gasoline[s],” together with by, for instance, refusing to finance new coal initiatives. If the CEOs of Exxon, Chevron, and Shell determined to chop gasoline manufacturing and costs then spiked, the DOJ Antitrust Division can be making arrests. However when the Massive Three stress them to do the identical factor, it’s praised as “ESG.”

Right this moment, DealLawyers.com linked to a Freshfields weblog, which famous that:

Led by antitrust officers within the US appointed by President Biden, authorities all over the world have turned a essential eye in the direction of personal fairness (PE), making PE the most recent goal within the international pattern towards elevated antitrust scrutiny…. The give attention to PE within the US could encourage different regulators, particularly throughout the Atlantic. In Germany, a draft regulation is being mentioned which might grant the Federal Cartel Workplace broad powers to deal with perceived “disruptions” of competitors. These powers are more likely to embody oversight of cross-ownerships and interlocking directorates. In 2020, the European Fee requested a examine on the results of widespread shareholdings by institutional traders and asset managers on European markets. Whereas no main enforcement motion has been taken for the reason that report, the headlines generated by the DOJ could encourage the European Fee to have a renewed take a look at these points in Europe. And within the UK, whereas the Competitors and Markets Authority has acknowledged that extremely leveraged personal fairness acquisitions are unlikely in themselves to impression competitors, it has demonstrated a willingness to observe the European Fee in pursuing personal fairness homeowners for potential antitrust violations by their portfolio firms, as demonstrated most just lately in relation to its case in opposition to extreme pricing for thyroid medicine.

And one would possibly wish to add the next from Amanda Rose (which I beforehand quoted right here):

Conventional asset managers declare their dedication to ESG is motivated by a want to enhance long-term fund efficiency for the advantage of traders. However company prices supply an alternate potential clarification: embracing the ESG motion could assist asset managers curry political favor, enabling them to fend off higher regulation of the trade; it might advance the non-public sociopolitical commitments of those that ran them; or it might supply a solution to appeal to traders to fund choices with out imposing any significant limitations on how a fund is managed.

https://lawprofessors.typepad.com/business_law/2022/10/should-antitrust-regulators-come-for-the-esg-cartel.html

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