Justice Department and Federal Trade Commission File Statement of Interest on Anticompetitive Uses of Common Shareholdings to Discourage Coal Production

Today, the Justice Department, joined by the Federal Trade Commission (the “Agencies”) filed a statement of interest in the Eastern District of Texas in the case of Texas et al. v. BlackRock, Inc. The States’ lawsuit—led by the Texas Attorney General—alleges that BlackRock, State Street, and Vanguard used their management of stock in competing coal companies to induce reductions in output, resulting in higher energy prices for American consumers. This is the first formal statement by the Agencies in federal court on the antitrust implications of common shareholdings.

On Jan. 29, President Trump issued Executive Order 14156, declaring a national energy emergency. On April 8, Executive Order 14261 called for “increase[d] domestic energy production, including coal.” As the Agencies’ statement makes clear, protecting competition for coal furthers these policies by enabling the free market to unleash America’s energy security and economic dynamism.

“The President has declared a national energy emergency, and we need competition in coal production now more than ever to help fuel American energy dominance,” said Assistant Attorney General Abigail A. Slater of the Justice Department’s Antitrust Division. “American consumers suffer when institutional asset managers use shareholdings in competing companies to orchestrate output reductions. As the Supreme Court has held, ‘social justifications’ for anticompetitive conduct ‘do not make it any less unlawful.’ We will not hesitate to stand up against powerful financial firms that use Americans’ retirement savings to harm competition under the guise of ESG.”

Today’s statement of interest explains that while antitrust safe harbors for passive investment protect most index fund investing and beneficial corporate governance advocacy, they do not protect the use of commonly managed stock in competitors to encourage market-wide reductions in output. The statement explains how the law protects typical shareholder behavior, how the States’ complaint alleges an anticompetitive campaign, and how the law should properly be applied to the States’ claims.

The Antitrust Division routinely files statements of interest and amicus briefs in federal court where doing so helps protect competition and consumers, including by encouraging the sound development of the antitrust laws. A collection of these statements of antitrust and amicus filings is publicly available on the Division’s website. 

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Source: Justice.gov