Episode Transcript
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0:01
In the past few years, there's
0:03
been a major backlash to what's
0:05
called ESG investing. Those
0:08
letters stand for environmental, social,
0:10
and governance, and they refer
0:12
to looking at particular risks
0:14
that a company might have.
0:17
So not just their short-term
0:19
financial performance, but also how they're
0:21
looking at environmental risks to their
0:24
supply chain, for example, or
0:26
social risks in terms of
0:29
whether or not they're tracking
0:31
diversity in their workforce, things
0:34
like that. ESG has been
0:36
around for a really long time, and it's
0:39
mostly been pretty non-controversial
0:42
up until a few years ago. Now
0:44
there's this huge backlash. People are
0:47
calling it quote-unquote woke capital, all
0:49
those kinds of things. And that's
0:51
been driven by a couple of factors. First,
0:55
this increase in the last 10 years
0:57
or so of what's called shareholder
1:00
activism. So when people who
1:02
hold shares in a particular
1:04
company put forth resolutions aimed
1:07
at improving that company's environmental
1:09
or social performance. And
1:11
the second is a move by the
1:13
Securities and Exchange Commission in the US
1:15
that started a few years ago to
1:18
try to provide some kind of consistency
1:20
in the way that companies report on
1:23
climate risk in particular. It's
1:26
always been a little bit loosey-goosey,
1:28
a little bit inconsistent, kind of
1:30
changing from company to company,
1:33
depending on what
1:35
industry they're in, or maybe who's
1:37
auditing their reports, those kinds of
1:39
things. So whenever the SEC
1:42
sees inconsistencies like that in
1:44
a space around investment, they see that
1:46
as their job, to provide the sort
1:49
of consistency and stability that investors are
1:51
looking for. That's why they started to
1:53
tackle this in the first place. And
1:56
when they first announced that they were going to put
1:58
out some kind of climate risk
2:01
disclosure guidance. Initially
2:03
they talked about including what are
2:05
called scope three emissions. Those are
2:07
the emissions associated with the entire
2:09
supply chain. So it's the
2:11
inputs up top and the way
2:13
that your product is used and
2:16
the emissions associated with that. So
2:18
you can imagine lots of companies
2:20
had an issue with this from
2:22
animal ag companies to oil and
2:24
gas companies to big tech companies
2:26
whose data centers are responsible for
2:28
a whole lot of emissions and
2:31
emissions that are growing every day. We've
2:34
covered this before in the podcast but
2:36
a lot of companies fought really hard
2:39
against the inclusion of scope three emissions.
2:42
Today's guest, Andrew Behar, president of
2:44
the ASU SO Foundation which
2:46
focuses on shareholder activism traces
2:49
the backlash back even a little earlier
2:52
to a 2019 decision by a group
2:54
of companies known as the Business
2:56
Roundtable. These
2:59
are guys that for the
3:01
record were very involved in
3:03
pushing climate science denial and
3:05
generally obstructing climate policy for
3:07
years. So not big tree
3:09
hugging liberals by any stretch of
3:11
the imagination. They're some of the
3:13
largest companies in the world that
3:16
they sat down in 2019 and decided
3:18
that the way that companies had been
3:20
operating with this laser focus on short-term
3:22
profits being the only thing that mattered
3:25
was actually not working. But it
3:27
was ultimately harming their own bottom
3:29
lines. So they agreed to
3:31
adopt an approach that they called
3:33
shareholder capitalism. Behar says
3:35
that's what really kicked off a big
3:38
right-wing fight against shareholder activism
3:40
and ESG. We've
3:43
been talking about a sort of activism in
3:45
this series. That's probably one that comes to
3:47
mind more often when people hear the word
3:50
activism, getting out on
3:52
the streets, civil disobedience,
3:54
protest. But this
3:56
is also a type of activism
3:58
and it's also fake. facing a
4:00
big backlash right now. So I wanted
4:02
to talk about it as part of
4:04
this real free speech threat series.
4:07
A lot of the recent fight against shareholder
4:10
activism has been led by a
4:12
guy named Leonard Leo, whose name you
4:14
might recognize if you're a regular
4:16
listener of this podcast. He
4:19
ran the Federalist Society for a
4:21
long time. He's also often the
4:23
guy who's pulling the strings behind
4:25
the Republican Attorneys General Association, or
4:27
RAGA. And in the last couple
4:29
years, he's been a recipient of
4:31
billions of dollars of right wing
4:33
money to continue his crusade against
4:35
any kind of regulation on
4:37
industry, especially regulation on pollution.
4:40
And it just so happens
4:42
that he's not a big
4:44
fan of basic civil rights
4:46
either. So going after
4:48
ESG and shareholder activism
4:50
fits squarely in his
4:53
wheelhouse. One
4:55
of the latest battles in this whole
4:57
anti ESG, anti shareholder activism fight has
5:00
been a string of lawsuits that are
5:02
trying to make it effectively illegal
5:04
for shareholders to put forth
5:07
resolutions around social justice or
5:09
environmental concerns. Exxon's
5:11
filed one of these suits, the
5:13
National Association of Manufacturers has filed
5:15
one, American Airlines. These
5:18
are starting to pick up. And
5:20
again, it's all in the context
5:22
of this interconnected fight against really
5:24
looking at any environmental or social
5:26
justice issues, really trying to separate
5:29
business interests from that to block
5:32
any sort of regulation that would in
5:34
any way curtail a business's ability to
5:37
just focus on profit. And
5:39
of course, again, it's a weird
5:42
fight because in a lot of ways, the things
5:45
they're doing to fight against
5:47
looking at these factors are
5:49
actually harming profit. I
5:52
had a super interesting conversation with Behar
5:54
about all of this that's coming up
5:56
after this quick break. This is drilled
5:58
the real. speech threat
6:00
and I'm Amy Westerfeld. Hey,
6:09
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6:30
I want to start with the Exxon
6:32
lawsuit. If you could
6:34
just walk me through what happened
6:48
there. The Exxon lawsuit against Arjuna Capital
6:50
was in response to a shareholder
6:53
resolution that they filed that
6:55
was basically asking for
6:57
climate disclosure and reduction
6:59
of emissions. It
7:01
was not an exceptionally out of
7:04
the ordinary resolution,
7:07
but Exxon rather than going to a no
7:09
action, going to the SEC and saying we
7:12
want to take no action on this resolution,
7:15
which is very standard practice. If a
7:17
company gets a resolution that they feel
7:19
is ordinary business, is
7:22
micromanagement, already
7:24
has substantial implementation, they go to
7:26
the SEC and in fact Exxon
7:29
is famous as being the only
7:31
company or maybe one of a
7:33
few that files a no action on every
7:35
resolution. No, no, exactly. No, no, he's not
7:37
ugly. He's filed 27 resolutions at Exxon since 2010 and we've
7:39
had 27 no actions. We
7:46
know Exxon knows how to file no actions, but
7:49
rather than filing a no action, which
7:51
we expected, they went
7:53
to litigation and
7:56
once the litigation got going,
7:58
Arjuna said, you know what, we'll
8:00
withdraw the resolution. So essentially gave x
8:02
on the win. That's all I was asking
8:05
for. We want you to withdraw the resolution. So don't
8:07
have to put it on our proxy statement. And
8:10
but rather than saying,
8:12
okay, we won great, they said we want
8:14
to continue we want to essentially
8:17
punish this shareholder. And
8:20
we want to make sure that they
8:22
can never file a shareholder resolution again,
8:25
they want to essentially
8:27
classify that there's two
8:29
kinds of shareholders, like
8:32
real shareholders and shareholders who just
8:34
own shares to file resolutions. So
8:37
essentially, what they're trying to do is to rewrite
8:40
property law. When you
8:42
buy a share of stock, you have property
8:44
rights that say that you get to decide
8:46
who's on the board of directors, you get
8:48
to file shareholder resolutions, you get dividends, there's
8:50
basic rules, it's your property
8:52
rights associated with that piece of property.
8:56
And next on trying to do is
8:58
to not only neuter the SEC's power,
9:01
but also to rewrite this whole idea
9:03
of what rights to shareholders have. And
9:06
this is part of a much bigger crusade
9:08
that's been going on that we generally
9:11
refer to as the anti ESG crusade,
9:13
that's been led for
9:16
most part by a fellow named Leonard Leo,
9:18
who you might recognize as being the
9:21
co chair of the Federalist Society, he was given
9:23
$1.6 billion in 2022 mid 2022, essentially to try
9:25
to stop shareholders rights to
9:33
stop shareholders from doing what
9:35
they are allowed by law to do. And
9:39
I can go down that path and tell
9:41
you exactly how he's been doing it because
9:43
the three tiered strategy that they're using, and
9:45
this is just one part of the strategy.
9:47
So this is a much bigger question.
9:50
And it involves
9:52
the House Judiciary Committee, it involves
9:54
filing literally hundreds of bills at
9:57
the state level to make sustainable
10:00
investing illegal to make assessing and
10:02
addressing risk illegal at the state
10:04
level and what the ramifications of
10:06
this have been because it's been
10:08
a financial disaster for the states
10:10
that have adopted these laws. So
10:13
this is much bigger
10:16
piece of work and the Exxon
10:18
lawsuit is just one piece of
10:20
it. There's also several other lawsuits.
10:23
The National Association of Manufacturers lawsuit,
10:25
the American Airlines lawsuit, Chevron deference.
10:27
It's all one thing, which is
10:29
take away shareholders. Basic
10:31
rights interesting to place it in
10:33
the context of all that stuff. I
10:36
guess the anti ESG stuff in general
10:38
feels like an attack on shareholder activism.
10:40
More than a little one. No, that's the centerpiece
10:43
of it. I mean, yeah, really what it is
10:45
is in 2019,
10:47
there was a major decision made by every
10:49
corporation essentially in the world. That
10:52
the ideas of Milton Friedman that
10:54
shareholder primacy no longer
10:56
were working. It was just not working out.
10:58
I mean, if you think about it, shareholder
11:00
primacy, which was put forth in the 1970s.
11:04
By Milton Friedman says you
11:07
can dump in the commons. You
11:10
can have slavery in your supply
11:12
chain. You can poison your customers.
11:14
That's all okay. So long as
11:16
you maximize short
11:18
term profit. And
11:20
for well, back then
11:23
in the 1970s, the holding capacity of
11:25
the atmosphere to hold carbon was much
11:27
greater. The capacity of the
11:29
ocean to hold plastics was much greater. So
11:32
you could be dumping in the commons, but it wasn't going to come
11:34
back and bite you. Like right
11:36
now, what's happening with corporations is their
11:39
supply chains. They can't get raw
11:41
commodities because well, just about everything
11:43
that grows is being
11:45
harmed by climate change. You
11:47
know, cotton production massively down.
11:49
I mean, olive oil, Spain
11:51
and Southern Europe lost their
11:53
entire harvest. Cocoa is now
11:56
the commodity price for cocoa doubled in
11:58
the last year. year. So
12:02
everybody who's seeing all these inflation at
12:04
the grocery store, it's
12:06
because of climate. This is climate inflation,
12:08
but it's also affecting supply chains. So
12:11
dumping in the commons is going to harm the
12:13
corporation that's doing the dumping. That's why in 2019,
12:19
181 companies that make up the business round
12:21
table said, these ideas no
12:23
longer work. This is not good for us.
12:25
It's not good for our shareholders.
12:28
It's not good for all of our stakeholders.
12:30
So we're going to adopt this new idea
12:32
called stakeholder capitalism. You take
12:34
care of your employees. You want to
12:37
be able to really retain
12:39
to attract the best and the brightest. Customer
12:43
loyalty, very important. You don't want to poison
12:45
your customers. You want to take care of
12:47
them. Your supply chain, incredibly important. You've got
12:49
to get that material in order to bring
12:51
products to market. And
12:54
of course, the communities where you operate, which
12:56
that community could be not only
12:58
like local community, but
13:01
also the broader the
13:03
planetary community because dumping into the atmosphere
13:05
is going to come back to bite
13:07
you. And I
13:09
mean, we saw an example of this just just a, like
13:12
a couple weeks ago, Coke and Pepsi, they
13:14
were saving a penny on a
13:16
pound of sugar. And well,
13:19
that's Milton Friedman like, okay, great. But they
13:21
were using slavery in their supply chain and
13:23
an expose in the New York times came
13:25
out showing what's going on. And so now
13:28
their brand is associated with this
13:30
just horrific treatment of laborers. It's going
13:32
to cost them hundreds of millions of
13:34
dollars to rehabilitate their brand. And
13:37
so it's just, it's
13:39
shifting the time horizon from looking at
13:42
the next quarter to looking much
13:44
broader. And the
13:46
interesting thing is that most investors are actually
13:48
much more long term now that the vast
13:51
majority, by 80% of
13:53
most companies, investors are sovereign wealth
13:55
funds, pension funds, 401k
13:57
plans, but people have this
13:59
myth. mythology that You
14:02
should be making these decisions like
14:04
really structural decisions for
14:07
the companies based on essentially the 15%
14:09
of day traders and that
14:12
Idea has shifted. So again
14:14
mid 2019 business roundtable comes
14:16
out with it and
14:18
the world economic forum endorses it as the
14:22
fourth manifesto this manifesto the fourth
14:24
industrial age That
14:26
we're moving away from an extract of
14:28
economy Into a regenerative economy.
14:31
That's one that's based on justice and sustainability
14:34
So we're about five years into the implementation of
14:36
that now when that decision was
14:38
made That was a real
14:40
disruption and that is what the anti-esg
14:44
Crusade is about it's trying to
14:46
stop this transition. That's
14:48
already happening. The market forces are
14:50
already Decided and
14:52
they're trying to use the heavy hand
14:55
of big government There's really
14:57
literally a hundred and forty seven bills in 25 states
14:59
right now that
15:02
are trying to suppress freedom
15:05
to invest that are trying to tell us how
15:07
to think and The
15:09
ramifications of those I can tell you the
15:11
18 states that have adopted anti-esg legislation
15:15
all of their pension funds are underperforming
15:17
versus the rest of the country
15:21
and and significantly Because
15:23
they can't assess and address risk right
15:26
there Their treasurers are
15:28
unable to float municipal bonds because all the
15:30
banks have been banned So
15:32
Texas and 500 million dollars in
15:34
the first eight months after sp13
15:36
was put in place Just
15:39
to get their municipal bonds the Texas Chamber
15:41
of Commerce This is
15:43
exon and Chevron conical Phillips are part of
15:45
that. They reported that
15:47
Texas has wasted 668
15:50
million dollars and lost 3,000 jobs Directly
15:53
resulting from sp13 so
15:56
so these red states are harming
15:59
their firefights their teachers, their
16:01
police officers, their pension funds, their
16:03
harming all the citizens wasting all
16:06
the tax money in these states.
16:09
And yet it continues.
16:12
And that's why about 80% of these bills
16:14
get killed because they're so financially just
16:17
disastrous for the states. But
16:20
it's political theater.
16:22
And these
16:24
folks think that they're scoring points for
16:27
passing this legislation. What have
16:29
you seen in the wake of
16:31
the SEC finalizing its climate risk
16:33
disclosure guidelines and
16:36
ultimately leaving scope three out, which
16:38
I think a lot of people
16:40
characterized as them caving to pressure
16:43
and this kind of relentless
16:45
anti-ESG campaign. So now that that's been
16:47
chalked up as a win for the
16:49
anti-ESG folks, are you still seeing as
16:51
much of a push at the state
16:54
level to pass these laws
16:56
and or these sorts of lawsuits
16:58
against shareholders? Or do you think
17:00
they're satisfied now? Oh, no,
17:02
they're insatiable. They're just getting revved
17:04
up. In fact, Leonard Leo just
17:07
recently said, we need to flood
17:09
the zone with litigation. They're planning
17:11
hundreds of lawsuits against corporations. These
17:13
guys are anti-business, anti-freedom, anti-capitalist. That
17:16
was part of phase one. Now phase two
17:18
is going to be this massive litigation
17:20
and also Leonard Leo is calling for more
17:23
white men on boards. The number of white men on
17:25
boards dropped from 82% in 2020 to 77% in 2024.
17:31
And that 5% is lost. But only
17:33
how the supermajority is considered untenable.
17:36
When you say that he's talking about flooding the
17:38
zone with litigation, is it more of these kinds
17:41
of lawsuits like what Exxon filed against Arjuna?
17:44
No, it's more like filing
17:46
suits against corporations. For
17:48
instance, corporations that have diversity on
17:50
their board or diversity in their
17:52
workforce. So like a
17:55
lack of fiduciary responsibility kind
17:57
of thing where they're like not, supposedly
17:59
not. making enough money because they're too
18:01
worried about wokeness and that sort of argument?
18:04
Is that? Well, there's a kind of Ed
18:06
Blum, Edward Blum, who filed the Supreme Court,
18:08
who's now very familiar,
18:11
very familiar. Yeah.
18:14
Yeah. What they're asserting is
18:17
that if a company has a diversity,
18:20
equity and inclusion department, if they have a
18:22
diverse workforce, that they're going to be suing
18:24
them because they say that is not in,
18:27
that's not for short-term
18:29
profit maximization. Now,
18:32
as you so did a study, we looked
18:34
at the EEO one reports. That's the Equal
18:36
Employment Opportunity reports of, you look at
18:38
6,000 EEO one reports. So
18:41
1,600 companies over five years. These are the
18:43
reports that every company puts out to the
18:45
federal government about their diversity.
18:48
It's cut by each, you know, you have
18:50
management and you've got all the different groups
18:52
within the company and then you've got all
18:54
the protected classes. And what we found is
18:56
a statistically significant correlation showing that
18:59
greater diversity leads to financial outperformance
19:01
on eight key financial metrics, including
19:03
10 year stock return,
19:05
return on capital, return on investment,
19:07
basically every way that you would
19:10
judge finance.
19:13
So if a company
19:15
does not have diversity, they're actually in breach
19:17
of their fiduciary duty. Now
19:19
they're going to try to flip it. And
19:21
that's why they've been doing all these webinars about don't
19:24
believe data. There's actually a whole
19:26
thing around, it's called DEI lies
19:29
and that you should not believe, I mean,
19:31
they have a guy from the London School
19:33
of Economics. Literally he's, I've now
19:35
seen two of his webinars
19:38
saying, don't trust any data.
19:40
That there's, yeah, that
19:43
there's, that it's all biased. They don't
19:45
like basically don't trust math,
19:49
don't trust statistics.
19:53
Just don't trust data because there's
19:55
what they call confirmation bias. Now
19:58
I know my team that analyzed. these 1.3
20:00
million data points took over a
20:03
year. They're two PhDs, statisticians,
20:05
and I can tell you this data
20:07
is real. And if you
20:09
do not have a diverse management team, you're
20:12
going to be underperforming.
20:14
In fact, we actually found that
20:16
all white management teams underperform. So
20:19
if you want to increase the output of
20:21
your financial investments, look for
20:23
diverse management teams and overweight them, underweight
20:26
the all white management teams, and
20:28
you will outperform the benchmarks. We've
20:31
seen this now. It's clear. It's over
20:34
five years and statistically significant. I
20:37
know Ed Bloom is a fan
20:39
of these cases arguing that any
20:41
diversity approach
20:44
is violating the equal protection clause
20:46
of the 14th Amendment. Are they taking that kind
20:49
of an approach here as well, or
20:51
just saying that the
20:53
short term financial gains don't just take
20:55
any approach? They have no principles. They're
20:57
just trying to achieve an end. And
20:59
also, it's also, you know, what is
21:02
his name? Stephen Miller, who, right? Yeah, he just,
21:04
and he just got a grant of, I believe,
21:07
$27 million from one of these right
21:09
wing billionaires. I mean, this is
21:11
all funded by just a handful,
21:14
like three or four right wing
21:16
billionaires and oil barons. And they're
21:18
funding, Leonard Leo, they're funding
21:20
the Federal Society, American Enterprise,
21:23
Heritage Foundation, ALEC, all
21:25
these groups are all funded together. So
21:28
it's really a coordinated, concerted effort.
21:31
But getting back to the SEC,
21:33
because it's really important, important
21:35
point, you have to take the SEC climate
21:37
disclosure rule in context of why
21:39
was the SEC created in 1934? Well,
21:43
there was no financial information available. And
21:45
that's when the stock market crashed
21:47
and the Great Depression happened. And
21:50
they said, you know what, we
21:52
need standardized financial metrics, need every
21:54
company to report in the same
21:56
way we needed verified by a
21:58
third party. We need it
22:00
in a standardized format so we have comparability.
22:03
You can look at a financial report from
22:05
any two companies and send the same format.
22:08
Well, 90 years
22:11
later, 2024, they've come to
22:13
realize that these financial
22:15
statements are not the only information you need
22:17
to determine if a company is going to
22:19
be outperforming, if it's going to be successful,
22:21
and how to compare it to its peers.
22:24
There's other things like I
22:26
just mentioned, do they have diversity? That's
22:29
definitely a big one. What do
22:31
they do about their supply chains? How do they
22:33
treat their employees? All these things, companies
22:36
that treat their employees well have much better
22:38
retention. They spend less money on
22:40
training and on recruitment. They
22:43
will outperform. So investors
22:46
need to know these things. So what
22:48
the climate disclosure rule said is that
22:50
these material risk factors need
22:52
to be disclosed accurately. They need to be verified
22:55
by a third party in a standardized format. Now,
22:57
the first one of these factors was carbon
23:00
emissions. So overall,
23:04
the big takeaway here is, OK,
23:06
you've got the financial metrics and
23:08
now you've got all of the
23:11
material metrics. That's
23:13
a big, again, philosophical shift
23:16
that investors need more
23:18
information to do their fiduciary
23:21
duty and make good, informed decisions.
23:24
That's the real takeaway. The
23:27
fact that they don't use scope three means, well,
23:31
we only get to look at 20% of the emissions instead
23:34
of 100%. It would be much better to look at
23:36
100%. Also
23:39
they gave the companies the ability to
23:41
decide what is material, even though the
23:43
Supreme Court defines materiality as what
23:46
a shareholder needs to make a buy, hold,
23:48
or sell decision. So those
23:50
are the problematic parts of the new rule.
23:53
The fact that the rule exists that
23:55
we're now going to start to see
23:57
standardized disclosure
24:00
rules, critically important because
24:03
ultimately, right now, companies are just
24:05
disclosing information that could be completely
24:07
misleading. And, you know,
24:10
companies sustain analytics, MS, yeah, they scrape them up, and
24:13
they put them in a database and everybody thinks that
24:15
there's truth behind them when there isn't. But
24:18
here's the other good news. In Europe,
24:20
they've got CSRD and companies are
24:22
going to have to be disclosing
24:24
accurately for that. So any multinationals
24:27
already going to be starting to
24:29
disclose in the next 18 months,
24:31
that is pretty much going
24:33
to help investors to make the right
24:35
decisions. And also companies
24:38
that do disclose voluntarily, accurately, have
24:40
it verified in the standardized format
24:42
are going to get a lot
24:44
more investors because, well, if
24:46
you're an investor, you're going to say, Oh, well,
24:49
this company doesn't have anything to hide.
24:51
And we have an honest relationship
24:53
that there's trust between the company
24:55
and its shareholders. Now
24:57
remember, the
25:00
board reports to the shareholders, the
25:02
shareholders are the ultimate owners of these
25:05
companies. And that is
25:07
a critical thing that people don't realize. Or
25:10
maybe they realize it in the background, but that
25:13
that is the core of the
25:15
property rights associated with owning a
25:17
share of stock. So while
25:20
we're disappointed that they don't have scope three,
25:22
and we're very disappointed that they gave the
25:24
companies the right to decide what is material.
25:28
And also the fact that that's
25:30
not legal to do that, that
25:32
says it's up to shareholders to decide
25:34
that there is this
25:36
new structure that says disclose
25:40
accurately verified by a
25:42
third party and in a standardized format means,
25:44
Oh, now we've got audited financials,
25:46
and soon we will have audited sustainability
25:49
and materiality. And that
25:51
is a critical shift. Yeah,
25:54
I won't ask you to speak for the
25:56
the entire climate movement. But how is as
25:58
you so responding to to
26:00
this campaign, this onslaught.
26:03
We just keep doing what we do. We're
26:05
trying not to let it distract us. We
26:07
filed 89 shareholder resolutions this year,
26:10
which is down a little bit. We filed 111 last
26:12
year. We're
26:14
having, continue to having good relationships with
26:16
all the companies we engage. See,
26:19
here's the thing. We do a
26:22
lot of research and then we bring the research
26:24
to the companies and we sit down and have
26:26
these engagements. We say, hey, look, you scored a
26:28
seven on racial justice. Your direct competitors scored an
26:30
11. Here's a
26:33
better business plan, how you can outperform.
26:36
And most of the time, I mean, most
26:38
of the companies say, thank you. You
26:40
guys are like amazing. You're like McKinsey
26:43
for free. Let's go become better businesses.
26:45
And last year we had 210 engagements, 99
26:48
companies said, thank you. 111,
26:50
we filed resolutions to escalate it. And
26:52
once we did that, 56 said, you
26:54
know what? If you withdraw, we'll
26:57
agree to certain terms. We'll agree to start to implement
26:59
this stuff. So only about 30% go to a vote.
27:03
And when you go to a vote, those are non-binding. And then you sit
27:05
down and go, hey, 30% of your shareholders
27:07
think this is important. And the companies generally do.
27:10
They enlist their oil company and then they
27:12
just basically ignore their shareholders. So
27:15
we're just doing business as usual. The
27:17
companies are adopting better business
27:19
practices because they can see that it's better for
27:22
their businesses. Now the litigation
27:24
was getting back to Exxon against our
27:26
Juno. First
27:28
of all, the judge should just dismiss it
27:31
because Exxon already won. Exxon
27:33
said, what we want in this lawsuit is
27:35
for our Juno to withdraw their resolution and
27:37
for us to not put it on our
27:39
proxy statement. Okay, done, it wasn't on
27:41
their proxy statement. What
27:43
was on their proxy statement though is that they mentioned ASU so
27:45
13 times, referencing
27:48
that shareholders should not have
27:50
these rights. So
27:53
they are fundamentally attacking this
27:55
idea of property rights. Which
27:59
is... such a fundamental
28:01
thing for libertarians and for the conservatives.
28:03
It's amazing to me that
28:05
any of them would even sanction
28:08
this, but there they are doing it.
28:12
We're continuing business as usual.
28:14
Companies are quietly adopting the
28:16
good business practices that we're
28:18
suggesting. Some people call it green
28:20
hushing. It used to be that companies
28:22
would take a victory lap, say,
28:25
hey, you know what, we're adopting this
28:27
new DEI policy or this new climate
28:29
policy because they want investors to see
28:31
we're outperforming our competitors in
28:34
terms of reducing risk for all
28:36
stakeholders and opening up creating opportunity.
28:39
Now, they're much more quiet about it, but
28:43
they're still getting it done because
28:45
that's what good management does.
28:49
Here's the thing. Good
28:51
managers assess and
28:54
address risk. Good investors address
28:57
and assess risk. The
28:59
18 states where it's illegal to
29:01
assess and address risk, they
29:04
are suffering. It's literally
29:06
illegal. You think about it, why
29:11
are their pension funds underperforming? Well, they're
29:14
not allowed to assess and address risk. They're
29:17
not allowed to invest in companies that have
29:19
a climate transition plan, which are
29:21
generally the most profitable companies in the world. I
29:23
recently had a debate in
29:26
Arizona and the treasurer of the
29:28
Arizona, Kimberly Yee, was
29:30
debating anti-ESG. I was debating
29:33
pro-ESG. And I
29:35
asked her about SB 1195 in Arizona. Now,
29:38
if it goes into effect, literally the
29:42
state cannot do any business with any company
29:44
with a climate transition plan. And
29:46
I pointed out to her that half of
29:48
her portfolio was companies that have a climate
29:50
transition plan, and that she would
29:53
have to sell half of her portfolio and ask
29:55
her what's her plan. I also pointed
29:57
out that all the banks currently
30:00
funding their bonds. She won't be
30:02
able to do business with them. They'll all be banned. What's
30:05
she going to do? And how much more interest is she going
30:07
to be paying? Because you can't
30:09
get a lot of banks to bid on the
30:11
bonds. I also pointed out that all
30:13
of her bonds have
30:15
risk assessment for climate, for
30:17
water, for air, that she would have to
30:20
take out of those bonds,
30:22
issuances, which means very
30:25
few people, like reinsurers,
30:27
will not allow anyone
30:29
to bid and to fund these
30:31
bonds. And I said, what's your plan? And
30:34
she didn't have an answer. She said that,
30:37
oh, you know, it's about freedom and
30:39
ESG is taking away our freedom. And
30:42
I was like, no, actually, anti-ESG is saying
30:44
that we can't assess and address risk. You're
30:46
taking away our freedom to invest. And
30:50
so it was a very interesting just
30:52
to hear her, like she hadn't actually
30:54
done the homework and the Arizona
30:56
State Legislature. I said, you must have
30:58
prepared a report for the Arizona State
31:00
Legislature showing them all these financial risks.
31:03
Right. No, she had not, nor did she,
31:05
was she even aware that there were these
31:07
financial risks. So it's
31:10
political fear. And she's
31:12
super involved in the state financial
31:14
officers foundation too. Yeah,
31:17
she's a treasurer and she's very vocal.
31:19
And yeah. Yeah.
31:22
One of the things we haven't mentioned is
31:24
the fact that the House Judiciary
31:26
Committee is investigating as you so
31:28
in 13 other organizations for antitrust
31:30
activities. Right. I saw this. So I'll
31:32
tell you a little bit about that if you like.
31:35
Please. I know that I did a story
31:38
last year on just on the Texas
31:40
Public Policy Foundation and the stuff that
31:42
they were doing to try to push
31:45
that whole legal theory forward, that
31:47
ESG in general is antitrust in
31:50
some way, which every lawyer I
31:52
talked to said was bunk, but
31:54
you know, that hasn't stopped
31:56
them from moving forward with it. They should go
31:58
back to the House. Because the
32:01
house could frame it as. A
32:03
were writing new law and they're
32:05
saying willing to do discovery to
32:07
write this new law battle. We
32:09
got a letter last August. Same.
32:12
As You So is being investigated along with.
32:16
Your. Other groups including Black Rock,
32:18
Vanguard, State Street, Iss
32:20
Class Louis Calpers, The Lord's Pension
32:23
Fund in the Country. G
32:25
Fans which is five hundred of
32:27
the world's biggest banks, had forty
32:29
five countries and sandwiches the Net:
32:31
Zero Asset managers. Of
32:33
all told, the the fourteen
32:35
groups. That. Are being
32:37
investigated. Have a total assets under
32:40
management of one hundred and fifty
32:42
trillion dollars? Were talking about five
32:44
times Gdp of the United States
32:46
during that one and a half
32:48
times global gdp. So. Basically
32:50
the entire global economy is
32:52
being investigated by the House
32:54
Judiciary Committee's for Trump's activities
32:56
Saying. That. That.
32:59
Shareholders having a conversation. Is.
33:01
Collusion and that by setting companies
33:03
to reduce their carbon emissions were
33:06
infringing on the freedom of all
33:08
Americans. So. That's what they put
33:10
forward as their and legislative purpose and
33:12
so we're like questions about For so
33:14
were non profits, how could we be.
33:18
Doing. Anti Activity: We don't have a product
33:20
or a restaurant in any prices because we
33:22
don't have any prices. And so
33:24
we wrote a letter saying could
33:26
you clarify. They
33:28
sent us a subpoena such as:
33:30
turnover all your documents anything to
33:32
do with with Carbon or with
33:34
Net Zero Me all your documents
33:37
from Twenty sixteen. So
33:39
we gave them twelve thousand. Pages.
33:41
Of documents that were mostly
33:44
our or shareholder resolutions are
33:46
essential. Stations are reports. That.
33:49
We felt. Satisfied. Their.
33:51
Legislative pretty purpose that were pertinent
33:53
to their legislative purpose. They
33:56
said none enough. We need to hear from you
33:58
We come on. And we were. We want
34:01
to have an interview.
34:04
So we sent our chief counsel and she went in
34:06
and had eight and a half hours of being interviewed
34:08
and answered all the questions. They
34:10
said, not enough. So I said, okay,
34:13
I'll come in voluntarily at the end of March.
34:16
And so within a couple of days, they
34:19
sent us a letter saying we're going to hold you
34:21
in contempt of Congress. So our
34:23
lawyers said, well, if you're going to hold them in
34:25
contempt, then we can't answer questions
34:28
around document production because that's what they were
34:30
saying. That was the contempt that we hadn't
34:32
given them enough documents. So
34:34
we can't answer questions around that because
34:36
that would be self-incrimination. So
34:39
they immediately sent a subpoena that said, show up
34:41
on the same day you've already said you're coming.
34:46
So I showed up on the day that I said I was coming and
34:49
they proceeded to ask me five and a
34:52
half hours of questions. Most of it
34:54
was really kind of explaining to them how capitalism
34:56
worked. And they didn't quite understand that the
34:59
boards of directors report to their shareholders that
35:02
when three new
35:05
directors were added to the Exxon board or
35:07
were placed on the Exxon board in 2021,
35:10
it was because Exxon had been losing money.
35:12
Their stock had been dropping for 10 years.
35:15
They'd been thrown off the Dow. And
35:17
what's a shareholder to do? Like, of
35:19
course you're going to replace an incompetent board,
35:22
a board that had no capital discipline. Like,
35:24
of course you would do that. And that's just,
35:27
that's our right. They did not like that at
35:29
all. So it was mostly talking about that kind
35:31
of thing where I just kept having to explain
35:34
how the power structure of capitalism worked.
35:38
And so now they keep telling us that they're going to
35:40
be holding us contempt. We keep saying
35:42
we've given you all the pertinent documents.
35:45
We've cooperated completely with the
35:47
committee and we'll see what happens. Now
35:49
it's in their court. What's
35:51
interesting is just how they are
35:54
essentially trying to intimidate
35:56
shareholders from essentially doing what
35:59
is our... None They
36:01
are legal rights for our fiduciary
36:03
obligation to trade that the company
36:05
so we own to. Perform.
36:07
Better to have less risk. That's
36:10
really interesting. I know we
36:12
talked about some of the state laws. can
36:14
you talk a little bit about that? the
36:16
haggerty bill and what's sad is aiming to
36:18
do and where I thought at the moment.
36:21
He. Introduced it instead the Larry
36:23
February First Twenty Twenty Four. And
36:26
there's a companion bill in
36:29
the house it's called the
36:31
rest Fit for Businesses Act
36:33
in the rest and sense
36:36
for rejecting extremists, shareholder proposals
36:38
that inhibit import enterprise. Re.
36:41
Will be good as his has been doing
36:43
this for thirty two years and we work
36:46
with Groups wage or the Safe Space groups
36:48
that have been doing it for sixty years.
36:50
And. Every. Shareholder Resolution that
36:53
we file is about helping a
36:55
company to reduce material risk for
36:57
all stakeholders and to create opportunities.
36:59
It's helping them assess and address
37:02
risk they might not see and.
37:05
The. Fact that he see this as some sort
37:07
of a threat when. Seventy.
37:09
Percent of the company's we engage say
37:12
thank you thank you for caring enough
37:14
to bring us good data and good
37:16
ideas. And. Thirty percent go
37:18
to a vote and then almost all
37:20
of those. Then after the vote say
37:22
thank you for bringing this good ideas.
37:24
You're making this a better company. Shows
37:26
just how. Out of
37:28
touch they are and how much this
37:30
is just too little fear. For. Their
37:33
trying to do here turn to take away
37:35
to shareholders property rights. To this
37:37
is that participatory democracy. This.
37:39
About capitalism and this is
37:41
our freedom and. It. Seems
37:43
like Mr. Haggerty does not like
37:46
those things and doesn't. Quite.
37:48
Understand. that
37:50
that is how the system works and works
37:52
quite well i got a set these are
37:54
not and resolutions emmy we have ninety six
37:57
percent votes in the company doesn't have to
37:59
do it Now, in
38:01
those cases, and the company says, no, we're not going to
38:03
do anything. Well, then the shareholders
38:05
go, you're not listening to us, and therefore
38:08
we're going to vote against this
38:10
board. We don't have confidence in this board. We're
38:12
going to vote and no confidence vote. And
38:15
oftentimes that leads to running new board
38:18
candidates, often much
38:20
more competent. I mean, interesting thing
38:22
about the Engine 1 directors at
38:24
Exxon, there was no one
38:26
on the Exxon board in
38:28
2021 that had any energy
38:31
experience. None of them. Okay,
38:33
two of the four Engine 1
38:35
directors had experience working with an
38:37
energy company. And there's a lot
38:39
of outside influence, but since
38:42
the day, since May of 2021, Exxon stock has
38:45
done pretty much nothing but go up
38:47
after a 10 year decline. So
38:49
anyone who says these directors harm the company, well,
38:52
first of all, 91% of the shareholders voted
38:55
for some of them and
38:57
all been reelected every year
38:59
after. And the company has done much
39:02
better financially since then. They're
39:04
just not looking at the data, but again,
39:07
they don't necessarily like data either. And
39:11
what's interesting is, you know, I talked about in
39:13
2019, there was this big decision on a
39:15
new philosophy. Well, right after
39:17
that, the Catholic Church, they
39:19
came up and said, you
39:21
know what, this Papal law
39:23
that gave basically all the explorerships
39:26
would put a priest in it. And
39:29
it was called the Doctrine of Discovery. You get to
39:31
a new land and you claim it
39:33
for the church. And then you
39:35
could do anything. The people there
39:37
could be subjugated, could be enslaved,
39:39
et cetera. Just
39:42
kind of quietly, the Catholic
39:44
Church said, you know, by the way, that law is no
39:46
longer in force. I saw that, it
39:48
got no attention in the press, but that
39:51
is a major philosophical shift. That is like
39:53
literally they just announced on, it was March
39:55
23rd, 2020 that colonialism is
39:59
no longer. It's
40:01
no longer legal. No
40:05
one noticed it, but we're
40:07
seeing this level of philosophical
40:10
shift. Now we've got a long way to go
40:12
to get to a glide path
40:14
into this new paradigm, and
40:17
there's a lot of reparations that have
40:19
to happen to rebalance. But
40:22
the folks who have been in power
40:24
for all of this time, they're not
40:26
liking it. Here's the
40:28
thing, when you have all this power and you
40:30
see it potentially going away, like the 82% of
40:33
white males on boards to 77, that little
40:35
bit of change is seen
40:38
as outrageous and it's
40:40
a massive attack on the
40:42
structure that we know and
40:45
love and have for centuries.
40:49
Whereas the people who haven't had any power are seeing
40:51
like, oh, I'm having a little bit more power there.
40:54
The pushback is very intense, but
40:57
you know what? You cannot stop market forces.
41:00
You can try. It's
41:02
a ripple that's become a wave and is soon
41:04
to be a tsunami. They can
41:06
stand out there and hold their hand up
41:08
against the tsunami, but they will just be
41:11
swept away by it. That
41:13
is what Leonard Leo knows.
41:16
That is what they are desperately trying to
41:19
slow down. They know they can't stop it, but they're
41:21
trying to slow it down as much as possible. It
41:24
has to do with the way
41:26
the oil companies control all the
41:29
governments and that everyone is
41:31
beholden to them. Guess
41:35
what? The internal combustion engine is going
41:37
obsolete. Interesting data point this
41:39
week. I think it was just
41:41
today or yesterday, the Wall Street Journal called
41:44
oil and gas a sun-setting industry.
41:46
Well, it is. It is the Kodak. I
41:49
often say shareholders went to
41:51
Kodak and said, hey, we got to think
41:53
about our business model.
41:57
We got to think about digital photography. They said,
41:59
no, we make films. And we
42:01
went to Blockbuster and we said, you know, this internet
42:03
thing, it's not just a fad, you should really look
42:05
at Netflix and they go, no, we
42:07
have brick and mortar and we have these
42:09
VHS. Same
42:12
thing with Exxon. It's been, again,
42:14
27 resolutions over 10 years saying, let's think
42:17
of ourselves as an energy company, not an
42:19
oil company. I mean, we've come
42:21
up with really innovative resolutions
42:23
that we're trying to reward, give
42:25
bonuses to executives that actually started
42:28
to transition the company. We had
42:30
this idea that rather than base
42:33
bonuses for executives on
42:36
what's called barrel replacement, you
42:39
sell a barrel, you got to go discover a new barrel, but
42:42
rather on BTUs, on British Thermal
42:44
Units or energy. And
42:47
each barrel of oil or each unit
42:50
of gas, all the
42:52
fossil fuels have BTU
42:55
equivalents. So you just do
42:57
the math and you just go, oh, and
42:59
you report to the SEC both
43:02
your barrel replacement and your energy
43:05
replacement. And then you can see,
43:07
oh, look, they replace 70% of
43:09
their barrels, but 30% is, but they have
43:13
100% energy replacement. That's
43:15
a company that's transitioning. I want to overweight them
43:17
in my portfolio. And we
43:20
actually talked, it was interesting, we had these
43:22
meetings with Chevron because we filed this resolution.
43:25
I remember sitting in this meeting and we explained it to
43:27
them and these executives, high
43:29
level people said, like CFO level
43:31
people said, you know, we're going to make
43:33
a lot of money. Like I'm going
43:35
to get really rich doing this. And we're like, yeah, exactly.
43:39
You guys should get rich transitioning this
43:41
company. They're like, okay, let's
43:44
maybe let's go together to the SEC and talk about
43:46
this. They're like, that's cool. We'll do that. Anyway,
43:49
then they invited Exxon along. And
43:51
somehow, by the end of
43:54
that week, the whole thing was
43:56
put the kibosh on it. Interesting. But
43:59
again, we're sure. shareholders trying to figure out
44:01
how do we make this company viable in
44:03
the long term? Because we don't think that
44:05
they are long term,
44:07
their viability is seriously
44:10
compromised in the long term. So
44:12
yeah, is there any
44:15
kind of either legislative
44:17
or judicial approach
44:19
to batting back some of this stuff?
44:21
Is suing them back or trying to
44:23
propose policy that would tamp down on
44:25
some of this anti-ESG fervor or people
44:28
just kind of trying to like ignore
44:30
it and get on with their day?
44:33
Well, people aren't ignoring it, what you're seeing
44:35
at the state level, like in South Dakota,
44:38
for instance, their anti-ESG bill lost, I think
44:40
it was 90 to 3. That's
44:43
because the South Dakota bankers got in and said, this
44:45
is going to crush our state. This is going
44:47
to just harm us. So you're seeing
44:49
at the state level, they're realizing the economic
44:51
harm, which is why about 80% of these
44:54
bills don't make it. And
44:56
then the ones that do, some of them are
44:58
specifically illegal. And it's
45:01
been very hard to find plaintiffs willing to stand up
45:03
to them. So
45:06
right now, it's a work
45:08
in process to actually push back in terms
45:10
of suing Edward Blum. Yeah,
45:12
is he actually the one that's bringing some of
45:14
these cases, the Leonard Leod ones? Is
45:17
it Blum and his crew?
45:20
Well, he brought the case against Fearless
45:22
Fund. Okay. So that's
45:24
the fund that gives grants to
45:27
black women entrepreneurs and also
45:30
as a VC. So
45:32
he's doing that. And then there's Miller who's doing his
45:34
stuff at Target, where he'll basically
45:37
create a hate
45:40
mob against LGBTQ. And
45:43
then he'll sue the company for having a hate mob.
45:46
So there's those troublemakers. And again, Miller
45:48
just got $27 million to run more
45:51
litigation from, I think it's
45:53
the Bradley Fund, which is important. The Bradley
45:55
Foundation. Okay, this is wild because I did
45:58
a two year project. looking at
46:01
all the anti-Iqwa cases, the
46:04
Anti-Indian Child Welfare Act cases,
46:07
that were being argued by Gibson Dunn,
46:11
which is why I got interested in it
46:13
because I was like, wait a minute, that's
46:15
Chevron's law firm. Why are they involved in
46:17
this child welfare case? The more we looked
46:20
at it, it was a
46:22
whole thing that had been started
46:24
by the Bradley Foundation who have
46:26
also funded Bloom for years too. Those
46:28
guys don't get as much attention as they
46:30
deserve. No, they
46:33
don't. But I mean, this is the, I call them the
46:35
oil barons and right-wing billionaires. Yeah. It's
46:38
a pretty small group, but they have.
46:40
Yeah. Very small group. This is the
46:43
regressive elites, if you will, and they just
46:45
want to go back to, look what's going
46:47
on in Arizona, 1864. That
46:49
was a pretty good year. That's seriously
46:51
what they want. I feel like Leonard
46:54
Leo has basically said that at various
46:56
points, pre-Lachner
46:58
and industrial revolution
47:01
stays. I don't know. Certainly
47:03
back to the 1970s and Milton Friedman. But
47:10
here's the thing, the University of Chicago, I
47:13
think it's a Friedman Becker School, which by
47:15
the way, was renamed because the
47:17
University of Chicago professors did not want to have it
47:19
just be the Milton Friedman School, because
47:22
they disagree with his theories. They're
47:25
teaching stakeholder capitalism. Why?
47:27
Because it works, because your companies
47:30
outperform, because you take care of
47:32
your employees, when you take care
47:34
of your customers, the
47:38
communities where you operate and your supply chain, you are
47:40
going to be a better company that's going to have
47:43
long-term sustainable growth that is going to
47:45
be good for all your shareholders. So
47:47
there's just no question about that. I
47:51
often cite an example of, if
47:54
you've got a company and it's dumping toxic
47:56
waste into the local river from your factory.
47:59
Yeah. Okay, you don't have to pay for water treatment
48:01
and you have saved a little bit of money there.
48:04
That looks good the first month, but then your
48:06
own employees are drinking the water and they're sick
48:08
and they're not showing up at work. And then
48:11
you get sued and your
48:13
brand is now tainted. Okay,
48:15
you've got such a deep economic problem signal
48:17
to last you for years that
48:19
the trade-off is
48:21
not worth it. Again, short-term is
48:24
long-term. And people
48:26
are just thinking much longer term now because
48:29
the investors in their companies are much longer
48:31
term. When somebody pats a law that says
48:33
it's illegal to look at risk, then you
48:35
really want to look at the risk and
48:38
say, why are they hiding? And
48:41
what they're hiding is that the oil companies are no
48:43
longer viable. That is what they're hiding
48:45
and it's in plain sight and everyone
48:47
knows it. But frankly, the
48:49
Saudis keep it pumped up and people
48:51
don't realize this. There's
48:54
a hundred million people with $10
48:56
trillion of assets in 401k plans
48:58
that are invested in the entire
49:00
extractive economy. If you're invested
49:02
in BlackRock, you own Saudi Aramco. Saudi
49:05
Aramco is on their board.
49:07
People don't know this. Now, not
49:09
only are you invested in rainforest
49:14
destruction and fossil fuels and
49:16
private prisons, but you've
49:18
handed off your right to vote to Vanguard that
49:21
votes with management 98% of the time. So,
49:24
we've all handed over all
49:26
of our power. Our power is in our money.
49:28
And we've said, okay, Vanguard, you can
49:31
do whatever you want to do. And
49:33
all you have to do is, you know, it's like it's your
49:35
money. The person who earns the
49:38
money should decide how it is invested and they
49:40
can use it to capitalize a future that they
49:42
want to live in. The person
49:44
who earns the money should have the right
49:46
to vote. They have the right to vote,
49:49
but they should actually use it to express
49:51
their values to the companies they own. It's
49:53
so basic and we're getting to the point
49:55
now. There's a new thing called pass-through
49:57
voting. As you saw this 401k plan, plan.
50:00
We are literally piloting starting in
50:02
a few weeks. We're
50:04
all going to every employee as you so we'll
50:06
be voting every one of our shares. So we
50:08
are on a Target date fund. That's 2000
50:11
companies or so we're voting everything on everyone.
50:13
And we're doing it with one click. We
50:15
call it as you vote. And
50:17
we also offer this for free anyone who
50:20
owns shares individually. Like
50:22
if you just have if you're getting your
50:24
proxy statements, your ballots into your inbox,
50:28
only one click you can sign up for
50:30
as you vote and all those ballots going
50:32
forward will be voted in an ESG aligned
50:34
way. According to our policy, that
50:36
means you're voting against 80%
50:38
of the CEO pay packages, you're voting against 70%
50:40
of the board, you're voting for all the good
50:43
shareholder resolutions and you're voting against all
50:46
the anti ESG resolutions, which by the
50:48
way, another that's another piece of the
50:50
Leonard Leo puzzle is they're
50:52
filing these resolutions, they're calling them racial justice
50:54
resolutions. But what they say is white men
50:56
are discriminated against. Yes,
50:58
it's a reverse racism thing. They've been trying
51:00
to make this argument since the 90s. The good
51:02
news is they wouldn't be pushing back as hard
51:05
if we were making progress.
51:07
And we are making good
51:09
solid progress. And we have
51:11
the market forces at our back. And
51:14
they are trying to stop
51:16
the unstoppable. For
51:23
this week, we'll be back with
51:25
a few more episodes in our real free speech
51:28
threat series over the next month or
51:30
so. This episode was engineered by
51:32
Peter Duff. Our music is
51:34
bird in the hand by For Now. You
51:37
can find a transcript of this interview
51:39
and lots of other related articles and
51:42
podcast episodes on our website
51:44
at drilled.media. And you
51:46
can follow us across social media at
51:48
we are drilled or I'm at Amy
51:50
Westervelt. Thanks for listening and we'll see
51:53
you next time.
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