daily business decisions." Grimes v. Centerior Energy Corp., 285 App. D.C. 290, 909 F.2d 529, 531 (D.C. Cir. 1990). This section of Rule 14a-8 gives recognition to the principle of corporate law that management of the business of a corporation is vested in its Board of Directors.
Consistent with this recognition, the SEC has permitted the exclusion of various proposals relating to health care, e.g., a proposal to eliminate medical benefits to employees for voluntary abortions, and a proposal to institute a medical and dental plan for all employees and their dependents. The SEC has recently issued five no-action letters on proposals similar to NYCERS's Proposal, upholding the exclusion of each proposal: The Journal Company, International Business Machines Corporation, Knight-Ridder, Inc., Tribune Company, and Pepsico, Inc. The Court should defer to the SEC's interpretation of its Rule. See Brooks v. Standard Oil Co., 308 F. Supp. 810, 813 (S.D.N.Y. 1969) (Lasker, J.).
It is true as argued by Plaintiff that shareholders are permitted under § 14(a) and Rule 14a-8 to vote on major questions of corporate policy, Philip Morris, 1990 WL 286063 (SEC Feb. 26, 1990); Pacific Telesis Group, 1989 WL 245523 (SEC Feb. 2, 1989), but the Proposal as adopted is not limited to corporate policy but seeks to cause the corporation to form national policy. As admirable as Plaintiff's objectives may be, there is no precedent to support such a Proposal, and the Court will not require the Defendant to include such a Proposal in its proxy materials.
Brunswick also argues that it should not be required to include the Proposal in the proxy materials because it is designed to further NYCERS's personal interest in national health care reform. It points out that in its December 21, 1991 letter to the SEC, NYCERS noted its "fiduciary responsibility" to the pensioners whose funds it manages, pensioners who are interested in the maintenance of their health care benefits. Such an interest, Brunswick argues, is a unique personal interest of NYCERS not generally shared by other shareholders at large. It argues that the test of such a proposal must depend on whether the proposal is designed to produce a benefit to shareholders as shareholders. Brunswick offers no legal support for this analysis and in the absence of such precedent the Court declines to utilize such a test.
The motion of Plaintiff for a preliminary injunction is denied. Counsel are to attend a conference in this Court on April 27, 1992 at 9:00 a.m. in courtroom 302 to determine what further action if any is required.
IT IS SO ORDERED.
Dated: New York, New York
April 21, 1992
ROBERT P. PATTERSON
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