Roosevelt v. E.I. Du Pont De Nemours

958 F.2d 416 (Dist. Columbia 1992)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

Prior to DuPont's annual meeting, Friends of the Earth Oceanic Society submitted a proposal on behalf of Roosevelt (P), regarding: (1) the timing of DuPont's phase out of the production of chlorofluorocarbons and halons; and (2) the presentation of shareholders of a report detailing (a) research and development efforts to find environmentally sound substitutes, and (b) marketing plans to sell those substitutes. D opposed such inclusion and notified the SEC of its motives and decision to omit. Friends of the Earth filed a counter-submission. The SEC issued a non-action letter and citing the rule 14a-8(c)(7) stated that it would not recommend Commission enforcement action against D if the company excluded the proposal. P did not seek review of the decision. Instead, she filed a complaint and a motion for a temporary restraining order in federal district court. Denying the motion, the judge stated that the Supreme Court has recognized implied private rights of action for alleged violations of Rule 14a-8. However, P had not shown the requisite irreparable harm. We expedited this appeal when P informed us that she sought inclusion of her proposal in the proxy materials for D's 1992 annual meeting. Before this appeal, D again advised SEC of its decision to refuse inclusion. And again, SEC issued a non-action letter. The lower court concluded that her proposal dealt with D's ordinary business and therefore was excludable under SEC Rule 14a-8(c) (7), 17 C.F.R. Sec. 240.14a-8(c)(7).