As noted in this WSJ article, the Department of Justice and Federal Trade Commission recently raised concerns in a “joint statement of interest” that large asset managers – including the “Big Three” of BlackRock, Vanguard and State Street – may have violated antitrust laws by using their influence to promote ESG policies that reduce coal production, potentially harming competition and consumers.
In the joint statement submitted as part of a climate case filed last year by 13 Republican states, the FTC and DOJ urged the US District Court for the Eastern District of Texas to reject the asset managers’ claims, citing multiple errors of law regarding the application of the nation’s federal antitrust laws to the actions of institutional shareholders in their role as common owners.
The agencies argue that asset managers and institutional investors may be held liable under Section 7 of the Clayton Act when they use their stock holdings in multiple competitors to achieve anticompetitive goals. They also argue that public, industrywide initiatives may still violate the Sherman Act and Clayton Act, even when purportedly justified out of social concerns.
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