The no-action letter to Whole Foods Market (Whole Foods), sanctioning exclusion of my proxy access proposal is based on a reinterpretation of Rule 14a-8(i)(9) without going through the rulemaking process. Letting Whole Foods substitute a sham proxy access proposal could negatively impact dozens of proposals submitted this year on proxy access and other topics.
The case is similar to AFSCME vs AIG, where the SEC also reinterpreted an existing rule without going through the rulemaking process. When rules are changed, the public has a right to notice and input. Yesterday, I filed an appeal to the full Commission. The body of that appeal is posted below so that others can benefit from and supplement these arguments in future cases. Download the full appeal as a pdf (McRitchieAppealNo-action12-23-2014).
Appeal of No-Action Letter Whole Foods Market, Inc., December 1, 2014
I am hereby requesting an appeal to the full Commission of the staff’s decision to grant Whole Foods Market, Inc. (Whole Foods) a no action letter permitting the omission of a shareholder access proposal that I submitted on the basis of the exemption in subsection (i)(9) of Rule 14a-8. Alternatively, I request that the staff reverse its position and withdraw the no action letter granted to Whole Foods. The issues in this case are novel or highly unique and are therefore appropriate for review by the Commission. See 17 CFR 202.1(d).
The staff’s position effectively denies shareholders the right to vote on competing proposals involving similar or related topics solely because the proposals contain different terms or thresholds. The interpretation effectively limits shareholders to consideration of proposals sponsored by the board of directors and eliminates any opportunity for shareholders to present alternative criteria. The interpretation is an unnecessary limitation on the shareholder franchise, effectively depriving shareholders of rights that exist under state law, and is inconsistent with the Commission’s intent in adopting subsection (i)(9).
A. The Requirements of Rule 14a-8(i)(9)
Rule 14a-8(i)(9) allows for the exclusion of proposals that “conflict with one of the company’s own proposals. . . ” 17 CFR 240.14a-8(i)(9). The provision was never intended to bar shareholders from considering alternative proposals on a similar topic, even when the competing proposals contained different terms.
The current iteration of subsection (i)(9) was added in 1998. See Exchange Act Release No. 40018 (May 21, 1998) (adopting release).
In proposing the language, the Commission noted that the provision was consistent with the “long-standing interpretation” that permitted “omission of a shareholder proposal if the company demonstrates that its subject matter directly conflicts with all or part of one of management’s proposals.” Exchange Act Release No. 40018 (May 21, 1998) (adopting release). In providing examples of the “long-standing interpretation” the Proposing Release (39093, added to this post for reference) cited two no action letters: General Electric Corporation (Jan. 28, 1997) and Northern States Power Co . (July 25, 1995).
In General Electric, the “conflict” arose out of two proposals that affected stock option plans. The shareholder proposal called for the mandatory indexing of the exercise price. In contrast, the Company proposal assigned to the board the discretion to determine the exercise price so long as the exercise price was not less than the market price. If adopted, therefore, the company would be confronted with pricing formulas that were inconsistent. As a result, the staff agreed that the proposal could be excluded.
In Northern States Power Co. (July 25, 1995), the company intended to submit a merger agreement to shareholders. The shareholder proposal at issue would have mandated that management negotiate a more equitable merger agreement, specifically the payment of alternative consideration. To the extent that both passed, neither could be implemented. See Id. (“An affirmative shareholder vote on both the Board’s proposal and the Proponents’ proposal would present the Board with an inconsistent mandate. The Board could not both enter into the merger agreement and negotiate a different agreement.”). As a result, the staff permitted the exclusion of the proposal.
These letters illustrate that, at the time of the adoption of the current version of subsection (i)(9) by the full Commission, proposals could be excluded only in very narrow circumstances and only where adoption of competing proposals could be harmful to shareholders. As General Electric and Northern States demonstrated, proposals could be excluded where adoption resulted in confusion or uncertainty in actual implementation or where, as a result of incompatibility, implementation of both proposals was impossible.
The staff also made clear that subsection (i)(9) could not be used as a tactical weapon in order to exclude shareholder proposals. To the extent company proposals were developed “in response to” a proposal submitted by shareholders, the subsection was unavailable. Finally, the staff only allowed for the exclusion of proposals that raised actual and immediate concerns. The proposals at issue in General Electric and Northern States were both mandatory and not precatory and, as a result, they raised clear and unavoidable issues with respect to implementation.
B. The Whole Foods Analysis
Whole Foods contends that the adoption of management’s bylaw and the shareholder proposal would result in “inconsistent and ambiguous” results. In making this assertion, the Company has pointed to three differences in the two proposals: “(i) the number of shareholders able to nominate a candidate, (ii) the required share ownership percentage and holding period and (iii) the number of directors that can be nominated.” These differences in the two proposals do not raise the types of concerns that subsection (i)(9) was intended to address.
The two proposals are, apparently, identical except for numerical thresholds “set at different levels.” These thresholds are clear and unambiguous. As a result, the shareholder proposal does not generate confusion or concern over ambiguity.
Indeed, any confusion arises directly from the decision to omit the proposal. Rather than providing shareholders with meaningful and unambiguous alternatives, the staff decision puts shareholders in the confusing situation of having to decide whether to oppose or favor a bylaw that provides for access but makes its use “unlikely.” To the extent that shareholders had more than one proposal with different thresholds, they could avoid the potential for a Hobson’s choice and vote for the proposal that was the most consistent with their actual position on access.
Indeed, shareholders have on other occasions confronted multiple proposals on identical topics that differed only on numerical thresholds with little confusion. The proxy rules require companies to ask shareholders about the frequency of the advisory vote on executive compensation. See Rule 14a-21(b), 17 CFR 240.14a-21(b). Shareholders must decide whether the vote should be every year, two years or three years. In adopting the requirement, investor confusion was not raised as a concern over the requirement. See Exchange Act Release No. 63768 (Jan. 25, 2011).
There is no conflict between the two proposals. Unlike Northern States and General Electric, the proposal at issue in this case is precatory, merely “ask[ing]” the board to adopt an access proposal with 3%/3 year periods. Thus, to the extent both the management bylaw and shareholder proposal are adopted, there will be no actual conflict.
Indeed, a vote on the shareholder proposal submitted in this case benefits the board. The results will provide directors with additional information about the views of shareholders. Because bylaws can be amended unilaterally by directors, including bylaws adopted by shareholders, the level of support for the bylaw submitted in this case will provide directors with information on shareholder views that may lead to modifications of the bylaw.
Nor is the authority cited by Whole Foods to the contrary. The Company acknowledged that there was no authority directly on point. Instead, the Company relied on nine “analogous” no action letters involving proposals relating to special meetings. Although the shareholders proposals were precatory, the letters did not address the impact of precatory proposals on any purported conflict that could arise with management proposals. As a result, the staff did not have the issue before it when considering the requested no action letters.
iii. Prepared “In Response To” the Shareholder Proposal
Exclusion also cannot occur where the bylaw has been adopted “in response to” a shareholder proposal. The circumstances surrounding the bylaw proposed by Whole Foods suggests that it was adopted “in response to” the proposal submitted in this case.
First, the timing suggests that the bylaw was a reaction to the shareholder proposal. Whole Foods made no mention of an access bylaw until after receiving the shareholder proposal at issue in this case. For example, see attached letter from Whole Foods objecting to my appointment of John Chevedden to act as my agent, indicating the “Company does not currently plan to include the Proposal in its proxy statement for the 2015 Annual Meeting,” and specifying action I might take to cure that objection but making no mention of their intent to submit an access bylaw.
Second, the terms indicate that the bylaw was a reaction to the shareholder proposal at issue in this case. The Company did not provide any text of its proposed bylaw. Nonetheless, in pointing to differences in the two proposals, the Company made no objection to most of the language contained in the shareholder proposal aside from the numerical thresholds. This suggests that the Company worked off the shareholder version and was, therefore, responding to the shareholder proposal.
Third, the bylaw proposed by the Company apparently makes exercise of the right to access “unlikely.” The bylaw, therefore, can be seen as a response to, and an effort to negate, a proposal designed to provide shareholders with a meaningful right of access.
Finally, the board could have adopted the access bylaw without submission to shareholders. Unlike an amendment to the articles of incorporation, shareholder approval is not a precondition for the adoption of a bylaw. While the decision to submit the matter was not necessary under state law, it did provide for a basis for exclusion of the proposal. This suggests that the bylaw and the terms of approval were determined as a “response to” the proposal at issue in this case.
iv. Interference with the Shareholder Franchise
The interpretation of subsection (i)(9) by the staff directly interferes with the shareholder franchise and effectively denies shareholders rights that exist under state law. Under state law, shareholders have the right to propose bylaws. Moreover, in at least some jurisdictions, they have the express right to propose bylaws that provide for shareholder access. Without the ability to include a proposal in the proxy statement, shareholders are effectively denied the right to adopt bylaws.
The staff’s approach also interferes with private ordering with respect to shareholder access. Shareholders are limited to the version proposed by management and cannot propose and vote on competing proposals with different numerical thresholds. This is true even where the management bylaw actually makes the exercise of the rights at issue “unlikely.” Moreover, to the extent that shareholders express opposition to a management bylaw and the bylaw does not pass, management can presumably resubmit the proposal the following year and again use subsection (i)(9) to block any meaningful role of shareholders in determining the applicable standards.
Whole Foods has not carried the burden of demonstrating how the shareholder proposal at issue in this case will result in actual confusion in implementation or result in an incompatibility that makes implementation of either proposal impossible. As a result, the Company has not established the availability of subsection (i)(9).
cc: Hon. Mary Jo White, Chair
Hon. Luis A. Aguilar, Commissioner
Hon. Daniel M. Gallagher, Commissioner
Hon. Kara M. Stein, Commissioner
Hon. Michael S. Piwowar, Commissioner
Mr. Keith F. Higgins, Director, Division of Corporation Finance
Mr. A.J. Eriksen, Baker Botts, L.L.P.
Mr. John Chevedden
 This is consistent with other no action letters during the relevant period. See Chevron Corporation (Feb. 27, 1991) (“if both the Chevron Proposal and the Subscription Proposal were approved by Stockholders at the 1991 Annual Meeting, it would be impossible for Chevron to implement both proposals.”).
 See Cypress Semiconductor Corporation (March 11, 1998) (“The Division is unable to concur in your view that the proposal may be excluded under rule 14a-8(c)(9). Among other factors that the staff considered in reaching this result, the staff notes that it appears that the Company prepared its proposal on the same subject matter significant part in response to the Mercy Health Services proposal.”); see also Genzyme Corporation (March 20, 2007) (“We are unable to concur in your view that Genzyme may exclude the proposal under rule 14a-8(i)(9). Among other factors that we considered in reaching this result, we note your representation that you decided to submit the company proposal on the same subject matter to shareholders, in part, in response to your receipt of the AFL-CIO Reserve Fund proposal.”).
 Letter from A.J. Ericksen, Baker Botts, Oct. 23, 2014, available at http://www.sec.gov/divisions/corpfin/cf-noaction/14a-8/2014/jamesmcritchie120114.pdf
 As Whole Foods has acknowledged, the proposal is “a non-binding shareholder resolution.” See also The Next Wave of Proxy Access Proposals: What Issuers Should Know and How They Can Prepare, WSGR Alert, Nov. 13, 2014 (“Approval of such a [precatory] proposal by shareholders does not implement proxy access at a company. If the Comptroller’s proposal passes, a company’s board is entitled, in the exercise of its business judgment, to decline to adopt a proxy access bylaw.”).
 Moreover, had both proposals been mandatory, their adoption would not have presented the type of conflict that subsection (i)(9) was attended to address. The higher thresholds set out in the management bylaw did not preclude or prohibit a proposal with lower thresholds. As a result, adoption of the two sets of requirements would not have prevented their implementation.
 Letter from A.J. Ericksen, Baker Botts, Oct. 23, 2014, available at http://www.sec.gov/divisions/corpfin/cf-noaction/14a-8/2014/jamesmcritchie120114.pdf (“We are unaware of instances where a company has sought no-action relief under Rule 14a-8(i)(9) with respect a shareholder-sponsored proxy access proposal that conflicts with a company-sponsored proxy access proposal.”)
 There are other reasons why a number of the letters cited by Whole Foods are inapplicable. Many of the cases involved proposals by management to amend the articles of incorporation or other “foundational documents.” Amendments require approval by both the board and shareholders. As a result, the board could not unilaterally alter an amendment to the articles that was adopted by shareholders to reflect the substance of a precatory proposal passed at the same time. In this case, however, the board has proposed an access bylaw, not an amendment to the articles. As a result, the board has the authority to amend the bylaw to reflect the substance of the precatory proposal. See supra note 4.
 Letter from Albert Percival, Senior Securities, Finance and Governance Counsel, Whole Foods, Sept. 22, 2014, attached.
 Thus for example the Company did not object to the portions of the shareholder proposal that included the requirement that directors be listed alphabetically, that board members or officers be excluded from any group submitting proposals, that shareholders have the right to provide a 500 word statement, and that proxy statements include instructions for submitting nominations.
 Pamelay Park, SEC grants Whole Foods no-action relief for proxy access proposal, Westlaw Corporate Governance Daily Briefing, 2014 WL 6779097 (“The ownership thresholds in Whole Foods’ proposal are so high that it is unlikely any shareholder will meet the standards required to include director nominees in the company’s proxy materials.”).
 See Texas Bus. Organ. Code Sec. 21.058.
 See DGCL 112.
 The Honorable Henry duPont Ridgely, Justice, Supreme Court of Delaware, The Emerging Role of Bylaws in Corporate Governance, at 7 (“For public companies, a shareholder vote to approve a bylaw requires proxy access.”), available at http://www.delawarelitigation.com/files/2014/11/The_Emerging_Role_of_Bylaws_in_Corporate_Governance-copy.pdf
 See Troy A. Paredes, Statement at Open Meeting to Propose Amendments Regarding Facilitating Shareholder Director Nominations, SEC, Washington DC, May 20, 2009, available at http://www.sec.gov/news/speech/2009/spch052009tap.htm