The best news today was yesterday’s article in Reuters, headlined “American Airlines’ focus on ESG in 401(k) plan is illegal, US judge rules.” The potential ramifications are so much bigger than the simple headline suggests.
Employers who manage their employees’ retirement accounts have a fiduciary duty to do their best to invest the money wisely. The law is very forgiving; fiduciaries can be stupid, they can make mistakes, and they can even buy bitcoin after the jump. Negligence isn’t normally enough. It usually takes an intentional act violating the fiduciary duty for a court to find liability.
And that is exactly what happened here. In what Reuters called a “first of its kind” ruling, yesterday a federal judge in Texas held American Airlines breached its fiduciary duty by making 401k investments based on environmental, social and other non-financial (“ESG”) considerations. In other words, “ESG” means DEI, climate change, transformers, and so on, and intentionally buying unprofitable ESG stocks is inconsistent with a fiduciary’s duties.
Specifically, and this might be the best part, ESG came into the picture because American Airlines invested a bunch of its employees’ money in Blackrock, whose entire raison d’etre is prioritizing woke ESG causes over maximizing investment returns.
District Judge Reed O’Connor blasted this type of “investing,” writing in his final order that “The evidence made clear that American’s incestuous relationship with BlackRock and its own corporate goals disloyally influenced administration of the Plan.”
Disloyally means that American prioritized BlackRock’s goals for making a “better world” over its employees’ goals of having some money to retire on. BlackRock may be panicking. Behold Reuters’ related headline from Thursday — the day before the judge’s final order published:
Ouch. A private BlackRock client letter explained the investment giant’s withdrawal from the NetZero collective—because of all the scrutiny and legal liability: “our memberships in some of these organizations have caused confusion regarding BlackRock’s practices and subjected us to legal inquiries from various public officials.”
Actually, that’s backwards. Nobody is confused about BlackRock’s practices. We understand it perfectly. In fact, over two years ago in 2022 Governor DeSantis took the lead, dumping BlackRock from the state’s investment plan:
Last year, in 2024, Texas followed suit:
Until this week, BlackRock was stubbornly hanging in there, rocking its woke credentials. But now that a federal judge has found that investing in BlackRock is de facto irrational because it fails to maximize returns, the ESG giant has a serious problem. This decision will freak out other companies, who will not want to avoid being on the receiving end of more lawsuits like the class action against American.
It might be a tad too early, but this is the very kind of thing that could be a death knell for wokeness. Wokeness writ large only came into its own when it was adopted by corporate America. This decision, along with the terrific work of activists like Robby Starbuck, and legal developments like the Supreme Court’s anti-discrimination decision, may finally make it financially impossible for blue states and corporate America to keep this up.
The American Airlines lawsuit started over two years ago. Remember, our wins against woke were all accomplished through a conservative counter-revolution that played out during the Biden Administration that was working against us at every corner. Just imagine what we can do after January 20th.
