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'Tis A "Bootless Labour" To Ask The Staff To Appeal Its Own No-Action Advice

In This “Appeal” Of Whole Foods’ No-Action Letter Isn’t Very Appealing, I wrote about Jim McRitchie's attempt to "appeal" the staff's decision with respect to the exclusion of his proxy access proposal to Whole Foods Market, Inc.  The staff had concurred in Whole Food's position that it could exclude the proposal under Rule 14a-8(i)(9).  Mr. McRitchie "appealed" directly to the SEC even though there is no formal procedures for such an appeal.

Recently, the National Center for Public Policy Research tried a different avenue for "appeal" a disappointing staff response.  The NCPPR had submitted the following proposal to the Walt Disney Company:

Resolved, the shareholder requests that the Board of Directors consider the possibility of adopting anti-discrimination principles that protect employees' human right to engage in legal activities relating to the political process, civic activities and public policy without retaliation in the workplace.

Last November, the staff agreed that Disney had "some basis" for excluding the proposal under Rule 14a-8(i)(7) as it related to the company's ordinary business operations.  The NCPPR then asked the staff to present the question to the full Commission pursuant to Rule 202.1(d) which provides in relevant part:

In certain instances an informal statement of the views of the Commission may be obtained.  The staff, upon request or on its own motion, will generally present questions to the Commission which involve matters of substantial importance and where the issues are novel or highly complex, although the granting of a request for an informal statement by the Commission is entirely within its discretion.

On January 5, 2015, the staff responded to this invitation to "appeal" its own decision: "We have applied this standard to your request and determined not to present your request to the Commission."

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