UNITED STATES 

SECURITIES AND EXCHANGE COMMISSION 

WASHINGTON, D.C. 20549 

DIVISION OF 

INVESTMENT MANAGEMENT 

May 23,2013 

Mr. Steve Tamari 

8 Oakdale Lake 

Glen Carbon, IL 62034 

Re: 	 College Retirement Equities Fund ("Fund") 

Request for Reconsideration dated May 14, 2013 

Dear Mr. Tamari: 

This is in response to the letters submitted on your behalf dated May 14, 2013 (two 

letters), and May 16, 2013 (two letters), all concerning the shareholder proposal you submitted to 

the Fund. We also received one letter from the Fund dated May 15,2013. 

On May 10, 2013, we issued our response expressing our informal view that the Fund 

could exclude the proposal from its proxy materials for its upcoming annual meeting. You have 

asked us to reconsider our position. After reviewing the information contained in the letters 

submitted in connection with your request for reconsideration, we find no basis to reconsider our 

position. 

Under Part 202.1 (d) of Section 17 of the Code of Federal Regulations, the Division may 

present a request for Commission review of a Division no-action response relating to Rule 14a-8 

under the Securities Exchange Act of 1934 if it concludes that the request involves "matters of 

substantial importance and where the issues are novel or highly complex." We have applied this 

standard to your request and determined not t6 present your request to the Commission. 

Copies of all of the correspondence on which this response is based will be made 

available on our website at http://www.sec.gov/divisions/investment/imnoaction.shtml#P87 900. Attached is a description of the informal procedures the Division 

follows in responding to shareholder proposals. 

Sincerely, 

Susan Nash 

Associate Director 

Attachment 

cc: Phillip T. Rollock 

James Marc Leas, Esq. 

Barbara M. Harvey, Esq. 
DIVISION OF INVESTMENT MANAGEMENT 

INFORMAL PROCEDURES REGARDING SHAREHOLDER PROPOSALS 

The Division of Investment Management believes that its responsibility with respect to 

matters arising under Rule 14a-8 [17 CFR 240.14a-8], as with other matters under the proxy 

rules, is to aid those who must comply with the rule by offering informal advice and suggestions 

and to determine, initially, whether or not it may be appropriate in a particular matter to 

recommend enforcement action to the Commission. In connection with a shareholder proposal 

under Rule 14a-8, the Division's staff considers the information furnished to it by an investment 

company in support of its intention to exclude the proposals from the investment company's 

proxy material, as well as any information furnished by the proponent's representative. 

The staff will always consider information concerning alleged violations of the statutes 

administered by the Commission, including argument as to whether or not activities proposed to 

be taken would be violative of the statute or rule involved. The receipt by the staff of such 

information, however, should not be construed as changing the staffs informal procedures and 

proxy review into a formal or adversary procedure. 

The determination reached by the staff in connection with a shareholder proposal 

submitted to the Division under Rule 14a-8 does not and cannot purport to "adjudicate" the 

merits of an investment company's position with respect to the proposal. Only a court, such as a 

U.S. District Court, can decide whether an investment company is obligated to include 

shareholder proposals in its proxy material. Accordingly, a discretionary determination not to 

recommend or take Commission enforcement actions, does not preclude a proponent, or any 

shareholder of an investment company, from pursuing any rights he or she may have against the 

investment company in court, should the management omit the proposal from the investment 

company's proxy material. 
May 14, 2013 

Debbie Skeens, Esq. 

Division of Investment Management 

Securities and Exchange Commission 

100 F Street, NE 

Washington, D.C. 20549 

Subject: 	 Request for reconsideration, or ifthat is denied, request for review by the 

Commission regarding the proposal submitted by Steve Tamari 

Dear Ms. Skeens: 

As one of the approximately 200 proponents of the resolution that was submitted by Steve 

Tamari I request reconsideration ofthe informal no-action determination of the staff, dated May 

10, 2013. 1 In this letter I will present material information that has not been previously furnished 

for consideration by the staff. I also incorporate by reference the letters dated Aprill5, April29, 

and May 2, 2013. 

Ifthe staff decides to maintain its view, I request that the staff present the questions below to the 

Commission for review under 17 CFR 202.1d. With regard to the two standards in that 

regulation, in this letter I will show that the issue is both a matter of substantial importance and 

novel. 

In its May 10, 2013 letter, the staff presented its informal view that the resolution has been 

"substantially implemented." However, in other situations, the staff took the position that "a 

determination that the Company has substantially implemented the proposal depends upon 

whether its particular policies, practices and procedures compare favorably with the guidelines of 

the proposal." See Texaco Inc. (available March 28, 1991) and quoted by CREF on page 6 ofits 

letter dated March 22, 2013. 

Similarly, in Home Depot February 21, 2012, the staff stated: 

that Home Depot's practices and policies do not compare favorably with the 

guidelines of the proposal and that Home Depot has not, therefore, substantially 

implemented the proposal. Accordingly, we do not believe that Home Depot may 

omit the proposal from its proxy materials in reliance on rule 14a-8(i)(10). 

CREF has the burden ofshowing that it met this SEC staff standard. The following material 

information was not previously considered by the staff: Although CREF quoted the Texaco Inc. 

standard, CREF never asserted in any ofits letters that it has policies, practices and procedures 

1 I am submitting this request as one of the proponents of the resolution on my own behalf 

in view offactors including the very short time available and the unavailability of several of 

Barbara Harvey's clh:~nts to review. 

Page 1 of 4 
that compare favorably with the guidelines of the proposal as actually written. Nor did CREF 

present evidence showing that it met this standard. Therefore, CREF could not possibly have met 

its burden and the staff should reconsider its view that CREF had met the standard. 

Instead ofmeeting its burden to show that it met the standard, in several ways CREF illustrated 

how it had not met the SEC staff standard regarding substantial compliance with the proposal. 

In the section ofCREF's March 22, 2013 letter to the SEC in which Phillip T. Rollock discussed 

"substantial compliance," CREF truncated the proposal, leaving off the entire guideline about the 

Israeli occupation. 

In CREF's April22letter to the SEC, Mr. Rollock revised the meaning ofthe word "includes," 

so that CREF said the Israeli occupation guideline was a mere "example" of egregious violations 

of human rights. 

Each of these alterations may be taken as an admission by CREF that it could not show that it 

had policies, practices, and procedures that compared favorably with the actual guidelines of the 

resolution as actually written. 

I would respectfully ask you to consider that the Texaco and Home Depot standard both include 

the plural, "guidelines." There is no suggestion in the standard or in any previous no-action letter 

cited by CREF that the company can omit a guideline, alter a guideline, or cherry-pick among 

guidelines, and then show substantial compliance with the truncated, altered, or cherry-picked 

version it creates. 

Instead of asserting that CREF had policies, practices and procedures that compare favorably 

with the guideline in the proposal about "companies whose business supports Israel's 

occupation," CREF asserted that it had policies regarding human rights in a different place, 

Darfur in the Sudan. But whatever CREF did regarding human rights in another location only 

highlights the disparity: the fact that CREF failed to have particular policies, practices and 

procedures that compare favorably with the guidelines of the proposal as written. The proposal 

states: 

THEREFORE, shareholders request that the Board end investments in companies 

that, in the trustees' judgment, substantially contribute to or enable egregious 

violations of human rights, including companies whose business supports Israel's 

occupation. 

The standard for review by the Commission under 17 CFR 202.1d includes "questions to the 

Commission which involve matters of substantial importance and where the issues are novel or 

highly complex." 

The following questions involve matters that are both of substantial importance and novel: 

• 	 Does CREF need to show that its policies, practices, and procedures compare 

favorably with the guidelines of the proposal as actually written? 

Page 2 of 4 
• 	 Can CREF meet its burden by showing substantial compliance with a version of the 

proposal that CREF altered, as it did in different ways in its letters dated March 22 

and April 29? 

• 	 Is the door now open for all companies to show substantial compliance by altering 

the proposal, and if one alteration does not work to try another? 

• 	 In its communication with the SEC, does CREF need to maintain the standard of 

avoiding materially false and misleading statements, such as by altering the text of 

the resolved clause? 

The above questions are ofsubstantial importance because they raise issues that extend beyond 

the present shareholder proposal at CREF. If the present view ofthe staff is maintained- so a 

company can truncate a proposal, change the wording ofthe proposal, or cherry-pick from the 

proposal-then the SEC staffwill be opening the floodgates to all companies to materially falsify 

the content of shareholder proposals so as to show substantial compliance and omit the 

resolutions from consideration by the shareholders. 

SEC rules restrict both the proponents and the company from making materially false and 

misleading statements in the proxy materials. But can the company make such statements in its 

letters to the SEC as it seeks to entirely omit the resolution from a vote by shareholders? 

This was not an oversight on CREF's part. Evidence that CREF knowingly falsified the text of 

the resolved clause is found in CREF's other April22, 2013 letter, in which Thomas C. Bogle 

admitted in his first paragraph that "the proposal seeks divestment from ' companies whose 

business supports Israel's occupation."' 

Mr. Bogle, representing CREF, thus admitted that the guideline concerning Israel's occupation is 

present and is an essential part of the resolved clause. In view of Mr. Bogle's admission, Mr. 

Rollock's truncating the resolution in his March 22letter and his assertion that the very same 

phrase is a mere "example" in his April 22 letter are knowing falsifications and can be given no 

credibility. CREF failed to meet any reasonable standard of candor and good faith in its dealing 

with the SEC. CREF should not be allowed to reap any gain from its inequitable conduct. 

Flatly contradicting the attempts to alter the resolution conducted by Mr. Rollock, Mr. Bogle's 

April22letter also shows that CREF has not substantially complied with the resolution. If Mr. 

Bogle, representing CREF, admits that "the proposal seeks divestment from 'companies whose 

business supports Israel's occupation,'" and ifCREF makes no assertion and provides no 

evidence showing compliance with that guideline, the SEC staff or Commission has no basis to 

find substantial compliance. 

While proponents presented vast evidence in the April 15 letter showing that the issue of the 

Israeli occupation is a significant social policy issue, the questions for reconsideration by the staff 

or review by the Commission are separately significant. The issue here is about whether the 

company can materially falsify the resolved clause so as to be able to show substantial 

Page 3 of 4 
compliance with the resolution, as so falsified. Also, whether the company can be found to have 

substantially implemented the proposal if the company has neither asserted nor provided 

evidence showing that the company has particular policies, practices and procedures that 

compare favorably with the guidelines of the proposal as actually written. 

These questions are novel. CREF did not provide citation for rightfully truncating a proposal. 

Nor did CREF present citation for rightfully altering the text or the meaning of a word or a 

location in a proposal or for rightfully cherry-picking among guidelines. By contrast, each of the 

no-action letters cited by CREF actually showed a company describing how its policies and 

procedures met all the terms ofthe undoctored proposal as submitted by the proponent. For 

example in Freeport-McMoRan, the company included a chart and gave detailed explanation in 

the text of its letters showing how it complied with each and every one of the six guidelines of 

the proposal. 

Thus, the present case appears to be the first time questions could be raised about the staff taking 

a position establishing that a company can alter the text of a shareholder proposal and then show 

that it substantially complied with the altered text to meet its burden to show substantial 

compliance with the proposal. 

Conclusion 

Reconsideration of the informal view expressed in the May 10 letter that the proposal may be 

omitted from a vote by shareholders is appropriate in view ofthe new and previously submitted 

information. If the staff does not agree to reverse its view, having met the two conditions under 

17 CFR 202.1 d, I respectfully ask the staff to present these questions to the Commission for 

review. CREF has not met its burden to show that it substantially implemented the proposal and 

the evidence is overwhelming that CREF has not substantially implemented the proposal. Please 

reverse and let the CREF shareholders consider and vote on this proposal. Ifyou have any 

questions, please do not hesitate to call. Thank you very much. 

Sincerely, 

s/James Marc Leas/ 

James Marc Leas, Esq. 

37 Butler Drive 

South Burlington, Vermont 05403 

802 864-1575 

jimmy@vermontpatentlawyer.com 

Page 4 of 4 
BARBARA HARVEY, ESQ. 


1394 EAST JEFFERSON AVENUE 


DETROIT, MICHIGAN 48207 


(313) 567-4228 


bhnharvey@sbcglobal.net 


May 14, 2013 

Debbie Skeens, Esq. 

Division of Investment Management 

Securities and Exchange Commission 

100 F Street, NE 

Washington, D.C. 20549 

Subject: 	 Request for Reconsideration or in the Alternative for Review by the Commission on 

BehalfofCREF Shareholder Proponents Steve Tamari, et a!. 

Dear Ms. Skeens: 

Please treat the submission filed by Mr. Leas this morning on his own behalf as submitted on 

behalf of the proponents, whose representatives have now authorized its filing. 

This letter serves to bring to your attention evidence that is new evidence, neither submitted in 

our previous submissions nor presented in Mr. Leas' letter of this morning. This evidence is a 

statement made by TIAA-CREF President and CEO Roger Ferguson at CREF's July 17, 2012 

annual meeting, to shareholders in attendance, which he appeared to be directing specifically at 

We Divest campaign representatives, in response to comments just made from the floor . His 

statement was that CREF would never divest from companies supporting the Israeli Occupation 

across all accounts. 

We respectfully submit that this statement by Mr. Ferguson is an admission by CREF's highest 

officer that it intends never to comply with the resolution, as written. By its express terms, the 

resolution requests divestment from companies supporting the Israeli Occupation. 

The record previously presented to the Staff contained no evidence of any steps that TIAACREF has taken to implement the proposed resolution's only specific request for action. The 

record now before the Staff contains evidence that TIAA-CREF intends never to achieve the 

outcome requested in the proposed resolution. The record does not even contain the actual 

T1AA-C~EF human rights policy that presumably constitutes 50% of the record upon which the 

Staff issued its no -action letter. 

Upon the record that is now before the Staff, it cannot fairly be found that the company - having 

failed to submit its actual human rights policy to demonstrate that it is in fact a policy capable of 

achieving the action requested in the proposed resolution ; having taken no steps of any kind, at 

all, to comply with the proposed resolution's only specific request for action; and having clearly 
and unambiguously stated, at its most recent annual meeting, that it will never take the full action 

requested in the resolution - has "substantially complied" with the resolution. 

We respectfully submit that this record, as set forth herein, does not meet the Commission's 

standard for substantial compliance, because TIAA-CREF's "practices and policies do not 

compare favorably with the guidelines ofthe proposal." Home Depot (February 21, 2012). 

Respectfully submitted, 

Is/ 

Barbara Harvey 

cc: Steve Tamari 

Sydney Levy 

James M. Leas, Esq. 

Phillip T. Rollock 

Jonathan Feigelson, Esq. 

Thoimas C. Bogle, Esq. 

Adam Teufel, Esq. 

2 

TIAA 


CREF 


-


Phillip T. Rollock 

Senior Managing Director and 

Corporate Secretary 

Tel: (212) 916-4218 

Fax: (212) 916-6524 

prollock@tiaa-cref.org 

May 15,2013 

VIA E-MAIL 

Deborah D. Skeens, Esq. 


Division ofInvestment Management 


U.S. Securities and Exchange Commission 

I 00 F Street, N .E. 

Washington, DC 20549 

Re: 	 Request for Reconsideration of May 10, 2013 No-Action Letter to 

College Retirement Equities Fund ("CREF") Relating to Shareholder 

Proposal of Steve Tamari 

Dear Ms. Skeens: 

By letter dated May 10, 2013 (the "No-Action Letter"), the Staff of the Securities 

and Exchange Commission advised that it would not recommend enforcement action to the 

Commission if CREF omitted a shareholder proposal (the "Proposal") submitted by Steve 

Tamari ("Proponent") from CREF's 2013 proxy materials in reliance on Rule 14a-8(i)(l0) 

under the Securities Exchange Act of 1934. On May 14, 2013, the Staff received two 

letters, one submitted by James Marc Leas (the "Leas Letter") and one submitted by 

Barbara Harvey (the:: "Harvey Letter"), each requesting that the Staff reconsider the NoAction Letter, and further requesting that the Commission review the No-Action Letter if 

Staff reconsideration is denied. For the reasons discussed below, we do not believe that 

Staff reconsideration or Commission review is warranted. 

I. The Proponent Has Presented No New Material Information to the Staff 

The Leas Letter purports to present "material information that has not been 

previously furnished for consideration by the staff." This is simply not the case. The 

arguments made in the Leas Letter are precisely the same arguments that Mr. Leas made in 

multiple letters to the Staff dated April 15, 2013 (beginning at Section T), April 29, 2013 

(beginning at Section III) and May 2, 2013. Mr. Leas seems to believe that, in CREF's 

request for no-action assurance and subsequent correspondence with the Staff, CREF 

"tnmcated," "altered" and "cherry-picked" words from the Proposal so as to change its 

meaning. This is an inaccurate assertion given that CREF's original March 22, 2013 

request for no-action assurance prominently restates, in its entirety, the exact wording of 

www.tiaa-cref.org 
the Proposal at the beginning of the letter. CREF also attached the Proposal and supporting 

statement, in its entirety, as an exhibit to that letter. The arguments made in the Leas Letter 

have no merit now, just as they had no merit when first presented to the Staff in the 

multiple letters submitted by Mr. Leas prior to the issuance of the No~Action Letter. 

The Harvey Letter does include one new allegation - a statement allegedly made 

by CREF's CEO, Roger Ferguson, at CREF's 2012 annual shareholder meeting. In fact, the 

statement Ms. Harvey attributes to Mr. Ferguson is a gross mischaracterization of Mr. 

Ferguson's actual comments at that meeting. Moreover, Ms. Harvey offers no explanation 

as to why such "new evidence" is only now being brought to the Staffs attention - after 

nearly two months of voluminous correspondence with the Staff relating to the Proposal, 

and 10 months after CREF's 2012 annual shareholder meeting. 

For the reasons discussed in our March 22, April 22, and May 1 correspondence 

with the Staff, we continue to believe that the Proposal has been substantially 

implemented.1 CREF already has put in place policies and practices designed to address 

human rights matters, which may include divesting from companies that, in the judgment 

of CREF's board, engage in serious human rights abuses. The Proposal's supporting 

statement acknowledges CREF's existing practices in this area, which are addressed in 

more detail in the TIAA-CREF Policy Statement on Corporate Governance. Indeed, the 

Proponent's own website acknowledges that CREF "cares about socially responsible 

investment," noting, for instance, that CREF has divested from companies with material 

ties to Sudan.2 The Proponent and his representatives complain that CREF has not 

specifically divested from "companies whose business supports Israel's occupation." 

However, when applying the "substantially implemented" standard, a proposal need not be 

"fully effected,"3 but rather implementation of the "essential objective" of a proposal is 

sufficient, even when the company's actions do not fully comply with the specific dictates 

of the proposal.4 In our view, CREF's human rights policies and practices constitute 

substantial implementation of the "essential objectives" of the Proposal for the reasons 

stated in our previous correspondence with the Staff.5 

We reiterate our view that the Proposal also rriay be excluded from CREF's 2013 proxy 

materials under Rule 14a-8(i)(7), for all of the reasons set forth in our prior correspondence with the 

Staff. 

2 See http://wedivest.org/about-the-campaign/ (viewed May 15, 2013). 

Exchange Act Release No. 20091,48 FR 35082 (Aug. 16, 1983). 

See, e.g., Freeport-McMoRan Copper & Gold, Inc., SEC No-Action Letter (pub. avail. Mar. 

5, 2003) (company already had implemented a human rights policy, even though the specific 

elements of the policy did not meet the shareholder proponent's objectives); see also AMR Corp., 

SEC No-Action Letter (pub . avail. Apr. 17, 2000) and Kmart Corp. , SEC No-Action Letter (pub. 

avail. Mar. 12, 1999). 

Moreover, if one were to accept the Proponent's construction of the Proposal, then the 

Proposal would clearly interfere with CREF's management functions, rendering the Proposal 

Page 2 of 4 
II. The Proponent has Not Met the Standard for Commission Review 

Section 202.l(d) provides that "[t]he staff, upon request or on its own motion, will 

generally present questions to the Commission which involve matters of substantial 

importance and where the issues are novel or highly complex, although the granting of a 

request for an informal statement by the Commission is entirely within its discretion." 

By its terms, Section 202.l(d) requires that a request involve matters that are novel 

or highly complex. The arguments raised by the Proponent and his representatives do not 

meet this standard. The Staff has considered and resolved numerous shareholder proposals 

requesting divestment from companies, including companies that, in the judgment of a 

fund's board, substantially contribute to human rights abuses. 6 Similarly, the Staff has 

considered and resolved multiple shareholder proposals relating to Israeli-Palestinian 

relations.7 In light of these facts, we respectfully submit that no novel or complex issues are 

raised by the Leas Letter or the Harvey Letter. Accordingly, the standard for Commission 

review has not been met. 

For all the reasons set forth herein, and in our letters dated March 22, April 22 and 

May 1, 2013, we respectfully request that the Staff deny the Proponent's request for 

reconsideration and Commission review. 

excludable under Rule 14a-8(i)(7). The Staff has consistently recognized that the ordinary business 

operations of an investment company include buying and selling portfolio securities, and that a 

shareholder proposal requesting that an investment company divest from specific portfolio securities 

may be excluded under Rule 14a-8(i)(7). See, e.g., College Retirement Equities Fund- Fuller, SEC 

No-Action Letter (pub. avail. May 3, 2004). At the same time, the Staff has permitted shareholder 

proposals requesting that an investment company's board screen out investments in companies that, 

in the judgment of the board, substantially contribute to serious human rights abuses. See, e.g., 

Fidelity Funds, SEC No-Action Letter (pub. avail. Jan. 22, 2008). Respecting the judgment of an 

investment company's board is an essential component of any such shareholder proposal- without 

it, a proposal would impermissibly interfere with management functions, rendering the proposal 

excludable under Rule 14a-8(i)(7). Accordingly, to the extent that implementation of the Proposal 

here would require CREF to divest from specific "companies whose business supports Israel's 

occupation," or to even accept that such companies "substantially contribute to or enable egregious 

violations of human rights," then the Proposal would be properly excludable under Rule 14a-8(i)(7) 

as interfering with CREF's management functions. We discuss these arguments in greater detail in 

our previous correspondence with the Staff. 

6 See id. 

7 See, e.g., American Telephone & Telegraph Co., SEC No-Action Letter (pub. avail. June 

30, 1992) and College Retirement Equities Fund, SEC No-Action Letter (pub. avail. May 6, 2011). 

Page 3 of4 
cc: 	 Steve Tamari 

James Marc Leas, Esq. 

Barbara Harvey, Esq. 

Jeffrey S. Puretz, Esq. Dechert LLP 

Thomas C. Bogle, Esq. Dechert LLP 

Adam T. Teufel, Esq. Dechert LLP 

18197682 

Page 4 of 4 

Very truly yours, 

~~:J \i-. {2-0.fZIJcl~t:.. l 

Phillip T. Rol1ock 

Senior Managing Director and 

Corporate Secretary 

College Retirement Equities Fund 
BARBARA HARVEY, EsQ. 


1394 EAST JEFFERSON AVENUE 


DETROIT, MICHIGAN 48207 


(313) 567-4228 


blmharvey@sbcglobal.net 


May 16,2013 

Debbie Skeens, Esq . 

Division ofInvestment Management 

Securities and Exchange Commission 

100 F Street, NE 

Washington, D.C. 20549 

Subject: 	 Request for Reconsideration or in the Alternative for Review by the Commission on 

Behalfof CREF Shareholder Proponents Steve Tamari, et a/. 

Dear Ms. Skeens: 

This letter responds to TIAA-CREF's letter of May 15, 2013, in response to the undersigned ' s 

letter on behalf of lead proponent Steve Tamari and other proponents. For the reasons set forth 

in our letter of May 14, 2013 and below, we urge Staff to reconsider issuance of its no-action 

letter or alternatively to refer our request for reconsideration to the Commission. 

1. TIAA-CREF's human rights policy does not permit divestment for egregious human 

rights violations. 

In responding to proponents' request for reconsideration, TIAA-CREF has at last 

identified its Policy Statement on Corporate Governance as the source ofthe human rights policy 

that it relies upon for its "substantial compliance" defense. This five-paragraph policy permits 

consideration of divestment only under the following circumstances: 

1. 	 "in the rarest of circumstances," and 

2. 	 "as a last resort" ; 

3. 	 companies to be divested must be judged by TIAA-CREF to be involved in 

"genocide and crimes against humanity, the most serious human rights violations"; 

4. 	 those same companies' involvement in "genocide and crimes against humanity" must 

be so intense as to make them "complicit" in the commission ofthese "most serious 

human rights violations"; 

5. 	 even then, TIAA-CREF will not divest unless "sustained efforts at dialogue have 

failed"; and, finally , 

6. 	 "divestment can be undertaken in a manner consistent with our fiduciary duties." 1 

1 (Emphasis added.) The verbatim passage follows: 

In the experience ofTIAA-CREF, long-term shareholder engagement with 

companies is the most effective and appropriate means of promoting corporate 
It is doubtful that any human rights crisis short of another Holocaust, recognizable as 

such at the time, would qualify for divestment under this policy, and then only after the 

"sustained" engagement that the company requires as a condition precedent to divestment. 

TIAA-CREF was still "engaging" with companies that supported apartheid in South Africa, 

when the ANC achieved success. 

The company's human rights policy does not encompass "ethnic cleansing," the practice 

ofremoving an entire undesired population, ifdone without committing genocide. 

Internationally respected Israeli scholar Ilan Pappe has accused Israel of engaging in the ethnic 

cleansing ofPalestinians.

2 The company's policy would not apply to the killing of non-violent 

resisters, Palestinian and international, as in the case ofEvergreen College student Rachel Corrie, 

an American who was bulldozed to her death while standing before a Palestinian home in Gaza 

that she sought to save from demolition. The policy fails to address torture and the imprisonment 

and solitary confinement of children for throwing stones at armor-plated 2-story bulldozers - the 

now popular symbolic image ofthe Palestinian David against the Israeli Goliath. Apartheid, 

itself, is neither "genocide" nor a "war crime." Yet apartheid practices provoked civil war in the 

United States and South Africa - violent uprisings that no one condemns as responses to such an 

egregiously dehumanizing human rights violation. 

Divestment from companies that support apartheid is the practice that modem Palestinian 

civil society has urged upon the world. The BDS movement eschews violent resistance. 

Companies adhering to policies such as TIAA-CREF's human rights policy would destroy the 

non-violent option, leaving violence as the only option. 

We submit that TIAA-CREF's human rights policy does not provide a mechanism for 

implementing the proposed resolution. CREF participants should be allowed to vote on whether 

they want such conduct on their consciences, as its beneficiaries. 

respect for human rights. However, in the rarest of circumstances and consistent 

with Section II ofthis document, we may, as a last resort, consider divesting from 

companies we judge to be complicit in genocide and crimes against humanity, the 

most serious human rights violations, after sustained efforts at dialogue have failed 

and divestment can be undertaken in a manner consistent with our fiduciary duties . 

TIAA-CREF Policy Statement on Corporate Governance, at 27 (61

h ed.), at https://www. tiaacref.org/public/pdf/pdf/govemance policy l.pdf. 

Part II, referenced in the quoted passage, states in relevant part a preference for 

"engagement over divestment." !d., at 5. However, as we have noted in an earlier submission, 

nothing in the language ofthe proposed resolution restricts TIAA-CREF from attempting to 

achieve the goals ofthe resolution by engagement before turning to divestment. 

2 Professor Pappe meticulously documented a historically comprehensive case for ethnic 

cleansing, as a policy and actual practice, in THE ETHNIC CLEANSING OF PALESTINE (2006), from 

the years ofZionist ideology that preceded establishment ofthe State ofIsrael in 1948, to the 

present occupation. "Israel's 1948 Plan D .. . contains a repertoire of cleansing methods that one 

by one fit the means the UN describes in its definition of ethnic cleansing, and sets the 

background for the massacres that accompanied the massive expulsion." !d. 2. 

2 

2. TIAA-CREF has made no showing to contradict the proponents' evidence of its intent 

never to divest from Israel's occupation across all of its accounts. 

The company attacks proponents' reference to a statement made by TIAA -CREF 

President and CEO Roger Ferguson at CREF's July 17, 2012 annual meeting, to the effect that 

CREF would never divest from companies supporting the Israeli Occupation across all accounts. 

It asserts that this passage is a "gross mischaracterization of Mr. Ferguson's actual comments at 

that meeting." Rollock letter of May 15, 2013, at 2. 

But CREF fails to explain how the statement grossly mischaracterizes Mr. Ferguson's 

comment. The argument quoted above is the total argument. As such, it is nothing more than a 

naked accusation that does not trump the proponents' specific factual statement. 

Ifthere is a dispute about whether our letter mischaracterizes Ferguson's statement, it 

may be resolved definitively by a transcript of the disputed statement, assuming, as we do, that 

the entire proceeding was likely recorded. Another option, although such evidence is no 

substitute for a transcript of the actual statement, would be an affidavit by Mr. Ferguson, stating 

the specific substance ofhis actual statement, as he presently recalls it, if he does. 

As described by proponents, Mr. Ferguson's statement is consistent with the human 

rights policy that has now been identified, which provides no policy foundation for divestment 

from companies that support egregious human rights violations by supporting the occupation. 

3. The "management functions" argument in footnote 5 in CREF's May 151h letter is a 

classic "red herring" issue. The proposed resolution was drafted to avoid treading on CREF's 

management functions. It names no companies frorri which CREF would be compelled to divest. 

It leaves entirely to CREF trustees the determination of which companies "substantially 

contribute to or enable egregious violations ofhuman rights, including companies whose 

business supports Israel's occupation." 

5. We submit that this request for reconsideration meets the applicable standard for 

referral to the Commission, notwithstanding CREF's opposition: The Staff's interpretation of 

the "substantial compliance" rule to apply to this case is novel, in that it effectively jettisons the 

existing rule, restated a year ago in Home Depot (February 21, 2012). It is now clear that 

CREF' s human rights policy does not establish a policy framework for the divestment sought in 

the proposed resolution. CREF has made no showing that it has taken any steps to apply its 

human rights policy to the Occupation.3 To the contrary, it has stated its intent never to divest 

from the occupation across all accounts. Finally, settling the meaning of the "substantial 

compliance" standard is an important question, warranting submission to the Commission. 

3 CREF has stated in its papers that it divested Caterpillar from its SRI accounts only 

because MSCI delisted Caterpillar as a socially responsible inyestment. 

3 

Respectfully submitted, 

Is/ 

Barbara Harvey 

cc: 	 Steve Tamari 

Sydney Levy 

James M. Leas, Esq. 

Phillip T. Rollock 

Jonathan Feigelson, Esq. 

Thomas C. Bogle, Esq. 

Adam Teufel, Esq. 

4 

May 16, 2013 

Debbie Skeens, Esq. 

Division of Investment Management 

Securities and Exchange Commission 

100 F Street, NE 

Washington, D.C. 20549 

Subject: Response to CREF letter ofMay 15 regarding request for reconsideration 

and/or review by the Commission regarding the proposal submitted by Steve Tamari 

Dear Ms. Skeens: 

This is in response to the May 15, 2013letter from Phillip T. Rollock ofCREF. Mr. Rollock 

states that it is "an inaccurate assertion" that in his correspondence with the staff "CREF 

'truncated,' 'altered' and 'cherry-picked' words from the proposal so as to change its meaning." 

He states that "CREF's original March 22, 2013 request for no-action assurance prominently 

restates, in its entirety, the exact wording ofthe proposal at the beginning ofthe letter." 

However, Mr. Rollock does not deny that, on line 23 of page 6 ofthe March 22letter where Mr. 

Rollock was discussing Rule 141 -8 (i)(10) regarding substantial implementation, he did indeed 

truncate, replacing a portion ofthe proposal with ellipses, and he then provided analysis as to 

why CREF substantially implemented the portion ofthe proposal regarding human rights as if 

the Israeli occupation portion ofthe proposal did not exist at all. 

Nor does he deny that on line 25 ofpage 3 ofCREF's Apri122letter where Mr. Rollock was 

discussing Rule 141-8(i)(l0) regarding substantial implementation, he did indeed alter the 

meaning ofthe word "including" to be an "example," now providing analysis as to why CREF 

substantially implemented the portion ofthe proposal regarding human rights as ifthe Israeli 

occupation portion existed merely as an example. 

The SEC staff decision was based on Rule 141-8(i)(10) "substantially implemented." As Mr. 

Rollock does not deny that he truncated, altered, and cherry-picked in the sections ofhis letters 

where he argued "substantial implementation, " the fact that the entire proposal was elsewhere 

accurately presented in CREF's March 22 letter is irrelevant. Mr. Rollock was essentially asking 

the staffto accept his various rewrites and cherry-pickings ofthe proposal so as to conform to 

the requirements ofsubstantially implemented rather than showing that CREF indeed "has 

policies, practices and procedures that compare favorably with the guidelines ofthe proposal" as 

actually written. 

Nor does Mr. Rollock deny that in both ofthose sections ofthose letters he cherry-picked the 

human rights portion as the "essential objective," effectively denying that the Israeli occupation 

portion was also an essential objective. Even Mr. Rollock's own representative, Thomas C. 

Bogle, disagreed with Mr. Rollock's selection as to the essential objective, as described in his 

letter, dated April22, 2013. There Mr. Bogle admitted that "the proposal seeks divestment from 

'companies whose business supports Israel's occupation."' Mr. Rollock's letter includes no 

mention ofthis contradiction. 

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Mr. Rollock's omission ofmention- and his failure to explain- this truncating, altering, and 

cherry-picking in these relevant sections ofhis letters means that his letter is bereft offacts or 

argument in response to the request in my May 14letter for reconsideration by the Staff or 

review by the Commission. 

Nothing in Exchange Act Release No. 20091 cited by Mr. Rollock permits a company to engage 

in the practices used by Mr. Rollock to hack, maim, mangle and distort the proposal as submitted 

in the name of avoiding the staffs "previous formalistic application" ofthe interpretation of 

Rule 141 -8(c)(10) that "the action requested by the proposal has been fully effected." None of 

the examples cited by CREF, including Freeport-McMoRan, AMR, and Kmart, involved a 

company that amputated the text or otherwise destroyed the meaning ofthe proposal as written. 

While, of course, CREF could not hide or replace the actual text ofthe proposal, Mr. Rollock's 

argument for substantial implementation entirely hinged on his desperate resort to truncating, 

altering, and cherry-picking in those relevant sections of his letters. Accepting or in any way 

giving a stamp of approval to this inequitable conduct would set a very unfortunate precedent. 

Nor did Mr. Rollock give any basis for designating himself as the one to make those self-serving 

cherry-picks as to what is the essential objective. 

Mr. Rollock did not reply to the point in my May 14, 2013 letter that said: 

Although CREF quoted the Texaco Inc. standard, CREF never asserted in any ofits letters 

that it has policies, practices and procedures that compare favorably with the guidelines of 

the proposal as actually written. Nor did CREF present evidence showing that it met this 

standard. Therefore, CREF could not possibly have met its burden and the staff should 

reconsider its view that CREF had met the standard. 

As CREF itselfhas continued to make no assertion, even in the May 15letter from Mr. Rollock, 

that it has pulicit:s, practict:s ami pruct:dures that compare favorably with the guidelines of the 

proposal as actually written, there is no basis for the SEC staff or the Commission to find that 

CREF has substantially implemented the proposal. 

Mr. Rollock fails to address or even mention the important and novel questions presented for 

review by the Commission in my May 14 letter. fustead Mr. Rollock mentions issues not raised 

for review by the Commission. 

fu footnote 5 CREF asserts that "ifone were to accept the Proponent's construction ofthe 

Proposal, then the Proposal would clearly interfere with CREF's management functions, 

rendering the Proposal excludable under Rule 14a-8(i)(7). 

I respectfully ask the staffto consider that I offer no construction ofthe proposal other than its 

plain meaning, undistorted by Mr. Rollock. 

Mr. Rollock's argument falls flat. Even ifyou accept his premise regarding management 

functions, which I do not, Mr. Rollock omits mention of the fact that proposals that are 

ordinarily excludable under Rule 14a-8(i)(7) may not be excluded ifthey meet the requirements 

Page 2 of 3 
of the exception for matters of"widespread public debate and increasing recognition that the 

issue raises significant social and corporate policy issues," as proponents described in the letter 

submitted on April 15. That letter gave voluminous evidence of widespread public debate and 

increasing recognition that the issue ofthe Israeli occupation raises significant social and 

corporate policy issues. CREF has not disputed that standard or that evidence. In footnote 5 Mr. 

Rollock simply ignored the existence of the exception for such significant policy issues. 

Therefore, Mr. Rollock's implication that his twisted constructions of the proposal are OK 

because the plain meaning ofthe proposal would cause it to be excluded under Rule 14a-8(i)(7) 

should be rejected by the staff. 

Conclusion 

CREF asserts that its accurate presentation ofthe proposal in the beginning of its letter is 

sufficient. Thus, CREF omits any mention or explanation of its actual truncating, altering and 

cherry-picking words from the proposal so as to change its meaning in the sections ofits letters 

which is the subject of the request for reconsideration and review by the Commission regarding 

"substantial implementation." 

If CREF' s action was accepted by the staff and the Commission, a company could follow 

CREF's example, and after accurately presenting the proposal in the beginning of its letter, the 

company could acceptably alter the proposal and unilaterally assert its view of its essential 

purpose to meet the needs ofits argument to have the proposal omitted from a vote by 

shareholders. 

As CREF has ducked responding to the issue ofits falsification and inequitable conduct in the 

sections where it engaged in such practice, the facts and arguments presented in my May 14 

letter, the request for reconsideration and review by the Commission, and the questions actually 

presented for review by the Commission stand unanswered and undisputed. And CREF has 

never asserted or presented evidence that it actually met the terms of the Texaco standard that 

CREF itsdf pn:st:nlt:u. 

Please reverse and let the CREF shareholders consider and vote on this proposal. If you have any 

questions, please do not hesitate to call. Thank you very much. 

Sincerely, 

s/J ames Marc Leas/ 

James Marc Leas, Esq. 

37 Butler Drive 

South Burlington, Vermont 05403 

802 864-1575 

jimmy@vermontpatentlawyer.com 

cc: Steve Tamari, Sydney Levy, Barbara Harvey, Phillip T. Rollock, Jonathan Feigelson, Esq., 

Thomas C. Bogle, Esq., Adam Teufel, Esq. 

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