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NEW YORK CITY EMPLES. RETIREMENT SYS. v. DOLE FOOD

April 24, 1992

THE NEW YORK CITY EMPLOYEES' RETIREMENT SYSTEM plaintiff,
v.
DOLE FOOD COMPANY, INC. defendant.



The opinion of the court was delivered by: KENNETH CONBOY

 KENNETH CONBOY, DISTRICT JUDGE:

 Proceeding by an order to show cause, the New York City Employees' Retirement System ("NYCERS") brings this action for a preliminary injunction that would enjoin defendant Dole Food Company, Inc. ("Dole") from the solicitation of shareholder proxies for Dole's upcoming annual meeting without informing shareholders of NYCERS' shareholder proposal. In the alternative, NYCERS seeks inclusion of the proposal on a supplemental mailing prior to the annual meeting.

 I. Background

 NYCERS is a public pension fund that owns approximately 164,841 shares of common stock in Dole Food Company, Inc. ("Dole"). Affidavit of Elizabeth Holtzman Dated April 8, 1992 ("Holtzman Afft.") P3. On December 12, 1991, New York City Comptroller Elizabeth Holtzman, in her capacity as the custodian of NYCERS' assets, wrote to the executive vice president of Dole, requesting Dole to include the following proposal ("the NYCERS proposal") in its proxy statement prior to its annual meeting:

 NEW YORK CITY EMPLOYEE'S [sic.] RETIREMENT SYSTEM SHAREHOLDER RESOLUTION ON HEALTH CARE TO DOLE FOOD COMPANY, INC.

 WHEREAS: The Dole Food Company is concerned with remaining competitive in the domestic and world marketplace, acknowledging the positive relationship between the health and well being of its employees and productivity, and the resulting effect on corporate growth and financial stability; and

 WHEREAS: Sustained double-digit increases in health care costs have put severe financial pressure on a company attempting to continue to provide adequate health care for its employees and their dependents; and

 WHEREAS: The company has a societal obligation to conduct its affairs in a way which promotes the health and well being of all;

 BE IT THEREFORE RESOLVED: That the shareholders request the Board of Directors to establish a committee of the Board consisting of outside and independent directors for the purpose of evaluating the impact of a representative cross section of the various health care reform proposals being considered by national policy makers on the company and their [sic.] competitive standing in domestic and international markets. These various proposals can be grouped in three generic categories; the single payor model (as in the Canadian plan), the limited payor (as in the Pepper Commission Report) and the employer mandated (as in the Kennedy-Waxman legislation).

 Further, the aforementioned committee should be directed to prepare a report of its findings. The report should be prepared in a reasonable time, at a reasonable cost and should be made available to any shareholder upon written request.

 SUPPORTING STATEMENT

 Our nation is now at a crossroads on health care. Because of cutbacks in public programs, jobs that offer no benefits and efforts by employers to shift health care costs to workers, 50 million Americans have health care coverage that it inadequate to meet their needs and another 37 million have no protection at all.

 The United States spends $ 2 billion a day, or eleven percent of its gross national product, on health care.

 
As insurance premiums increase 18 to 30 percent a year, basic health care has moved well beyond the reach of a growing number of working families. This increase also places heavy pressure on employer labor costs. There is no end in sight to this trend.
 
As a result and because of the significant social and public policy issues attendant to operations involving health care, we urge shareholders to SUPPORT the resolution. ...

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