BIG OIL Takes on BIG WOKE!

Exxon Sues Two ESG Investors!

PUBLIUS SPECIAL GUEST: Robert H. Bork Jr. is the President of the Antitrust Education Project, and recently reissued his father's book, The Antitrust Paradox: A Policy at War with Itself.

ExxonMobil is exercising its legal right to put the kibosh on an ESG effort to force the company out of its main business of producing oil and gas, which the last time I checked is a legal business. After being overrun in 2021 when activist-investment firm Engine No. 1 succeeded in placing three directors on Exxon’s board, the company is showing that it remains uncowed by the ESG movement and its Rube Goldberg approach to the environment.

ExxonMobil wisely chose not to engage in pointless kabuki theater with the SEC and its progressive Chair Gary Gensler. ExxonMobil chose instead to pursue its legal rights in a Texas courtroom to block a proposal from investment activists Follow This and Arjuna Capital. The company has a sound legal strategy given that SEC rules allow it to reject shareholder proposals that would interfere with “ordinary business operations” and that have been previously rejected by shareholders.

“Defendants are asking ExxonMobil to change its day-to-day business by altering the mix of – or even eliminating – certain of the products that it sells,” ExxonMobil said in its filing. The goal is to “force ExxonMobil to change the nature of its ordinary business or to go out of business entirely.”

But Exxon’s suit also hints at something potentially more important, perhaps a broader arena for future ESG battles. The logic of its suit leads one to ask: Do the disingenuous and coordinated campaigns of activist shareholder groups amount to a conspiracy to violate the Sherman Act, which explicitly prohibits the “restraint of trade”?

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PLUG BOOK: The Antitrust Paradox By Judge Robert H. Bork

BIO: Robert H. Bork, Jr., heads the Bork Group, a 18-year-old virtual crisis, litigation, and public affairs agency, which draws from the best, most-experienced, independent communications talent. Mr. Bork has designed strategies for clients in many high-profile cases and policy battles. His experience includes directing the public affairs strategy in critical issues for Eli Lilly, Google, AT&T, and the U.S. Chamber of Commerce's Institute for Legal Reform, to name just a few. He began his career as a journalist as a police reporter before moving to business and economics. As a journalist, he covered international economics at U.S. News and World Report, was managing editor of the quarterly journal Regulation, and worked as a reporter at Forbes, The Detroit Free Press, The Fort Worth Star-Telegram and The Miami Herald. Mr. Bork made the switch to advocacy in 1987 working at the Heritage Foundation, on Capitol Hill as an aide to U.S. Sen. Gordon Humphrey (R-NH), and as special assistant for U.S. Trade Representative Carla Hills. Throughout his career, Mr. Bork has specialized in the development and implementation of communication strategies in crises, litigation, and legal policy. In his many years of experience managing the public environment surrounding high-profile matters, he has worked directly with CEOs, general counsel, and communications executives of major U.S. and international corporations. Mr. Bork's range of experience includes antitrust, product liability, intellectual property, securities fraud, economic espionage, white-collar crime, mergers and acquisitions, First Amendment and employment discrimination. His work has been on behalf of clients ranging from the automobile industry to pharmaceuticals, computers, software, chemicals, railroads, franchising, telecommunications, insurance, health-care, and former manufacturers of lead pigment. In every matter he has worked directly with the client's legal counsel. Mr. Bork graduated from Carleton College with a degree in American history. He was a Herbert J. Davenport Fellow in Business and Economic Journalism at the University of Missouri School of Journalism. He lives in McLean, VA, with his wife (and general counsel) Diana. They have two children.

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Robert H. Bork Jr. is the President of the Antitrust Education Project, and recently reissued his father's book, The Antitrust Paradox: A Policy at War with Itself.