that even an "audacious" proposal on a mundane topic is still mundane.
Plaintiffs argue also that to uphold Con Edison's right to exclude their proposal from its proxy materials risks denying them the equal protection of the laws. The short answer is that the only government agency to have acted here, the SEC, has not limited plaintiffs' rights at all, but has said only that it will not sue Con Edison for failure to include the disputed resolution in its proxy materials. Con Edison is not a government agency and is not itself subject to the constitutional restrictions plaintiffs would impose absent some suggestion, not present here, of joint action with government officials. Shelley v. Kraemer, 334 U.S. 1, 13, 92 L. Ed. 1161, 68 S. Ct. 836 (1948).
Because Con Edison has shown that the proffered resolution comes within the exception for "ordinary business operations," there is no need to deal also with whether it is designed simply to confer a benefit on and further a personal interest of its proponents. 17 CFR § 240.14a-8(c)(4).
If the resolution in question is not included in the proxy materials, it cannot be voted on by Con Edison's shareholders. Therefore, it appears that irreparable injury is present. However, even considering that the burden is on Con Edison to show that the proposal comes within the cited exception, plaintiffs have failed to show that they will likely succeed on the merits or that the equities weigh in their favor, decidedly or otherwise. Accordingly, their motion for a preliminary injunction must be denied.
The only other relief plaintiffs seek is a generally phrased injunction compelling Con Edison, in essence, to include in its proxy materials proposed resolutions to the extent the law requires such inclusion. Because Con Edison has established that the disputed pension proposal fits comfortably within the exception for "ordinary business operations," the general injunction plaintiffs seek would be unconnected to any current or anticipated violation of law. An injunction should not issue under such circumstances.
It goes without saying that an injunction is an equitable remedy. It 'is not a remedy which issues as of course,' Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S. 334, 337-38, 77 L. Ed. 1208, 53 S. Ct. 602 (1933), or 'to restrain an act the injurious consequences of which are merely trifling.' Consolidated Canal Co. v. Mesa Canal Co., 177 U.S. 296, 302, 44 L. Ed. 777, 20 S. Ct. 628 (1900). An injunction should issue only where the intervention of a court of equity 'is essential in order effectually to protect property rights against injuries otherwise irremediable.' Cavanaugh v. Looney, 248 U.S. 453, 456, 63 L. Ed. 354, 39 S. Ct. 142 (1919).
Weinberger v. Romero-Barcelo, 456 U.S. 305, 311-12, 72 L. Ed. 2d 91, 102 S. Ct. 1798 (1982).
Because it appears that no further relief can or should be granted in this case, defendant's motion for summary judgment is granted, and the complaint is dismissed.
Dated: New York, New York
March 26, 1992
Michael B. Mukasey,
U.S. District Judge
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