UNITED STATES 


SECURITIES AND EXCHANGE COMMISSION 


WASHINGTON, D.C. 20549 


DIVISION OF May 10,2013 INVESTMENT MANAGEMENT 

Phillip T. Rollock 

Senior Managing Director and 

Corporate Secretary 

College Retirement Equities Fund 

730 Third Avenue 

New York, NY 10017-3206 

Re: 	 College Retirement Equities Fund ("Fund") 


Shareholder Proposal of Steve Tamari 


Dear Mr. Rollock: 

In a letter dated March 22, 2013, you notified the staff of the Securities and Exchange 

Commission ("Commission") that the Fund intends to omit from its proxy materials for its 2013 

annual meeting a shareholder proposal submitted by Steve Tamari in a letter dated January 14, 

2013. 1 The proposal provides : 

THEREFORE, shareholders request that the Board end investments in 

companies that, in the trustees' judgment, substantially contribute to or 

enable egregious violations ofhuman rights, including companies whose 

business supports Israel 's occupation. 

There appears to be some basis for your view that the Fund may omit the proposal from 

the Fund's proxy materials pursuant to Rule 14a-8(i)(10) under the Securities Exchange Act of 

1934, which permits omission of a proposal that has been substantially implemented. 

Accordingly, the Division of Investment Management ("Division") will not recommend 

enforcement action to the Commission if the Fund omits the proposal from its proxy materials in 

reliance on Rule 14a-8(i)(1 0). In reaching this position, we have not found it necessary to 

address the alternative bases for omission set forth in your letter. 

Because our position is based upon the facts recited in your letter, different facts or 

conditions or additional facts or conditions may require a different conclusion. Further, this 

response only expresses our position on enforcement action under Rule 14a-8 and does not 

express any legal conclusion on the issues presented. 

We also received four letters from the proponent dated April15, 2013 and April29, 2013 (two 

letters) and May 2, 2013, and three response letters from the Fund dated April22, 2013 (two 

letters) and May 1, 2013. 
Phillip T. Rollock 

May 10,2013 

Page 2 of2 

Attached is a description of the informal procedures the Division follows in responding to 

shareholder proposals. If you have any questions or comments concerning this matter, please call 

me at (202) 551-6795. 

Sincerely, 

Senior Counsel 

Insured Investments Office 

Attachment 

cc: Steve Tamari 
DIVISION OF INVESTMENT MANAGEMENT 

INFORMAL PROCEDURES REGARDING SHAREHOLDER PROPOSALS 

The Division ofInvestment 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 ofits 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 ofthe statutes 

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

be taken would be violative ofthe statute or rule involved. The receipt by the staff ofsuch 

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. 
~~ 

1:.' FINANCIAL SERVICES 

FOR THE GREATER GOOD• 

Phillip T. Rollock 

Senior Managing Director and 

Corporate Secretary 

Tel: (212) 916-4218 

Fax: (212) 916-6524 

prollock@tiaa-cref.org 

March 22, 2013 

VIA HAND DELIVERY 

William J. Kotapish, Esq. 

Assistant Director 

Division of Investment Management 

U.S. Securities and Exchange Commission 

100 F Street, N .E. 

Washington, DC 20549 

Re: College Retirement Equities Fund- 2013 Annual Meeting 

Omission of Shareholder Proposal of Steve Tamari et al. 

Dear Mr. Kotapish: 

College Retirement Equities Fund ("CREF") intends to omit from its proxy 

statement and form of proxy ("2013 Proxy Materials") a shareholder proposal and 

supporting statement that were submitted to CREF by Steve Tamari ("Proponent"), dated 

January 14, 2013 ("Proposal"),1 for CREF's 2013 annual meeting.2 This letter provides 

notice to the staff ("Staff') of the Securities and Exchange Commission ("Commission") of 

CREF' s intent to omit the Proposal. 

CREF is subject to the non-profit corporation law of New York, regulation by 

various state insurance departments and is registered with the Commission as a diversified, 

open-end management investment company under the Investment Company Act of 1940, 

as amended.3 CREF and Teachers Insurance and Annuity Association of America 

A copy of the Proposal is attached as Exhibit A Several CREF participants submitted nearly 

identical proposals for inclusion in the 2013 Proxy Materials. In the correspondence, most 

participants indicate that Steve Tamari will act as the lead filer. CREF intends to omit all of 

these proposals, and the term "Proposal," as used herein, refers to these other proposals as well. 

If CREF were to include Mr. Tamari's proposal in the 2013 Proxy Materials, CREF would 

exclude the other proposals as duplicative

See 17 C

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§ 240

14a-8(i)(ll)
("TIAA") form the principal retirement system for the nation's education and research 

communities. The financial services organization of which both companies are a part is 

sometimes referred to as "TIAA-CREF."4 

The Proposal requests that CREF cease investing in companies that allegedly 

provide "support for the Israeli occupation and segregated settlements in the West Bank, 

including East Jerusalem." Specifically, the Proposal requests shareholder action on the 

following resolution: 

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 Proposal is nearly identical to a shareholder proposal submitted to CREF in 

2011 ("20 11 Proposal"), where the Staff concurred with our conclusion that the proposal 

could be omitted from CREF's proxy materials because it dealt with a matter related to 

CREF's ordinary business operations.5 For the same reason, we believe that the Proposal 

here is properly excludable from the 2013 Proxy Materials. 

We also believe that the Proposal is properly excludable because the essential 

objective of the Proposal already has been substantially implemented, and thus the Proposal 

is excludable pursuant to subparagraph (i)(10) of Rule 14a-8 under the Securities Exchange 

Act of 1934, as amended ("Exchange Act").6 

For these reasons, we request that the Staff confirm that it will not recommend that 

enforcement action be taken if CREF omits the Proposal from its 2013 Proxy Materials. 

Please be advised that, pursuant to paragraph G) of Rule 14a-8, CREF 

simultaneously has notified the Proponent of its intent to omit the Proposal from its 2013 

Proxy Materials by a copy of this letter. 

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I. ANALYSIS 

A. The Proposal may be excluded under Rule 14a-8(i)(7) because it deals with 

matters relating to CREF's ordinary business operations. 

A proposal may be omitted under Rule 14a-8(i)(7) if it "deals with a matter relating 

to the company's ordinary business operations." This paragraph of the rule is captioned 

"management functions." The Commission has explained that the policy underlying the 

ordinary business exclusion under Rule 14a-8(i)(7) rests on two central considerations. The 

first consideration is that "certain tasks are so fundamental to management's ability to run a 

company on a day-to-day basis that they could not, as a practical matter, be subject to direct 

shareholder oversight." The second consideration relates to "the degree to which the 

proposal seeks to 'micro-manage' the company by probing too deeply into matters of a 

complex nature upon which stockholders, as a group, would not be in a position to make an 

informed judgment."7 As the Staff has recognized in numerous Rule 14a-8 no-action 

letters, "the ordinary business operations of an investment company include buying and 

selling portfolio securities."8 Omitting the Proposal thus fits squarely within the purpose of 

the exclusion for "management functions." 

As noted above, the 2011 Proposal is nearly identical to the Proposal here.9 Both 

the 2011 Proposal and this Proposal target investments in companies that, according to the 

Proponent, provide "support for the Israeli occupation and segregated settlements in the 

West Bank, including East Jerusalem .... "In addition, both proposals ask CREF to divest 

from companies "whose business supports Israel's occupation," and suggest that specific 

issuers, such as Veolia Environment, should be targets for divestment. We respectfully 

submit that, with the 2011 No-Action Letter, the Staff already has confirmed that a 

shareholder proposal along these lines may be excluded from CREF's proxy materials 

because it deals with a matter relating to CREF's ordinary business operations. 

We anticipate that the Proponent will claim that, while the intent and substance of 

the Proposal here is the same as the 2011 Proposal, the Proposal has been crafted in a 

manner that the Proposal should not be viewed as related to CREF's ordinary business 

7 

Amendments to Rules on Shareholder Proposals, Exchange Act Release No. 40018 (May 21, 

1998) ("Rule 14a-8 Release"). 
operations. This argument completely ignores the actual substance of the Proposal, which 

is nearly identical to the 2011 Proposal: ~ Both the 2011 Proposal and this Proposal begin with "Whereas" clauses that note 

CREF's longstanding commitment to social responsibility and ethical investing 

principles; 

Both the 2011 Proposal and this Proposal nonetheless criticize CREF for investing 

in companies that, according to the Proposal, provide "support for the Israeli 

occupation and segregated settlements in the West Bank, including East Jerusalem" 

- including specific named issuers; and ~ Both call on CREF to divest from such companies. 

The only difference in the two proposals is that the 2011 Proposal also calls on 

CREF to engage with specific portfolio companies, and then to divest if "there is no 

commitment to cooperate," while this Proposal does not call for CREF to engage -just to 

divest. In this regard, the Proposal interferes with CREF's longstanding policy of engaging 

in "quiet diplomacy" with portfolio companies, where appropriate, which is an integral part 

of CREF's investment activities. The TIAA-CREF Policy Statement on Corporate 

Governance ("Policy Statement") states: 

Our preference is to engage privately with portfolio companies when we 

perceive shortcomings in their governance or environmental and social 

policies and practices that we believe impacts their performance. This 

strategy of "quiet diplomacy" reflects our belief and past experience that 

informed dialogue with board members and senior executives, rather 

than public confrontation, will most likely lead to a mutually productive 

outcome.10 

Thus, by mandating divestment in specific portfolio companies, the Proposal 

interferes with CREF's longstanding policy of engaging in "quiet diplomacy" when 

appropriate- an essential component ofCREF's ordinary business operations. 

Notwithstanding the foregoing, we anticipate that the Proponent will ask the Staff 

to focus on the fact that many of the words used in the Proposal this year are the same used 

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substance of the Proposal, and how it is distinguishable from the substance of the AntiGenocide Proposals. The Anti-Genocide Proposals are aimed principally at companies 

who, through their business dealings in Sudan or otherwise, are viewed as having 

substantially contributed to genocide and egregious human rights violations. There exists a 

broad consensus that the activities targeted in the Anti-Genocide Proposals - genocide and 

egregious human rights violations in Sudan - are abhorrent, and deserving of universal 

condemnation. In fact, the human rights violations in Sudan are so extreme that U.S. 

companies are prohibited from doing business in Sudan. 12 Moreover, the U.S. Congress has 

passed a law -the Sudan Accountability and Divestment Act of 2007 - that is designed to 

make it easier for fiduciaries to divest from companies deemed to support human rights 

atrocities in Sudan. 13 

In contrast, the Proposal here attempts to embroil CREF in a highly controversial 

geopolitical dispute of enormous complexity where - unlike the Anti-Genocide Proposals -

there is no broad consensus. United States companies are permitted to engage in business 

dealings in Israel and the West Bank. Indeed, the United States adopted laws designed to 

discourage and, in some circumstances, prohibit U.S. companies from furthering or 

supporting foreign boycotts oflsrael.14 

We recognize the Commission's view that a shareholder proposal relating to 

certain types of management functions may not be excludable under Rule 14a-8(i)(7) if the 

proposal "would transcend the day-to-day business matters and raise policy issues so 

significant that it would be appropriate for a shareholder vote." For the reasons noted above 

and in our detailed correspondence with the Staff in connection with the 20 11 Proposal, 

that is simply not the case here. The Proposal is designed to turn CREF's annual meeting of 

shareholders into a forum for debate regarding, in the Proponent's words, "Israel's 

occupation." This issue is not the type of widely-accepted, significant social policy issue 

that would transcend the ordinary business exclusion. Indeed, the Proponent's claim that 

the Proposal raises a significant policy issue is directly at odds with numerous prior 

positions taken by the Staff- most recently affirmed by the 2011 No-Action Letter- where 

the Staff has concluded that proposals concerning Israel and the West Bank do not raise 
significant policy issues sufficient to trump the "ordinary business operations" exclusion in 

Rule 14a-8(i)(7).15 

For all the foregoing reasons, the Proposal deals with matters that are fundamental 

to CREF's ordinary business operations, and accordingly may be excluded from CREF's 

proxy materials pursuant to Rule 14a-8(i)(7). 

B. The Proposal may be excluded under Rule 14a-8(i)(l 0) because the 

essential objectives of the Proposal have already been substantially 

implemented. 

While we believe the 2011 No-Action Letter provides an adequate basis- standing 

alone - for excluding the Proposal, we think it appropriate to address an additional reason 

why the Proposal should be excluded from the 2013 Proxy Materials. 

Rule 14a-8(i)(10) permits omission of a shareholder proposal if "the company has 

already substantially implemented the proposal." The Staff has stated that "a determination 

that [a] [c]ompany has substantially implemented the proposal depends upon whether its 

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

proposal."16 Significantly, when applying the substantial implementation standard, a 

proposal need not be "fully effected."17 Rather, the Staff will grant no-action assurance 

when a company has implemented the essential objective of a proposal, even in cases 

where the company's actions do not fully comply with the specific dictates of the 

proposal.18 

In this case, the essential objective of the Proposal is to "end investments in 

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

violations of human rights .... " TIAA-CREF already has put in place policies and 

practices designed to address human rights matters, which may include divesting from 

companies in appropriate circumstances. Indeed, the Proposal itself acknowledges TIAACREF's existing practices in this area. 19 TIAA-CREF's policies and practices are included 

15 See, e.g., AT&T Inc., SEC No-Action Letter (pub. avail. Jan. 30, 1992) (addressing the 

exclusion in 14a-8(i)(5), concluding "the policy issue raised by the proposal, Israel's treatment 

of Palestinians, is not significant, and in fact is not related to the Company's business"). 

16 See Texaco Inc., SEC No-Action Letter (pub. avail. Mar. 28, 1991). 
in the Policy Statement, which sets forth corporate governance and social responsibility 

practices that TIAA-CREF expects of portfolio companies. The Policy Statement provides: 

"companies should strive to respect [human] rights by developing 

policies and practices to avoid infringing on the rights of workers, 

communities and other stakeholders throughout their global operations .. 

. . Companies should pay heightened attention to human rights in regions 

characterized by conflict or weak governance .... " 

Moreover, the Policy Statement addresses divestment, noting that: 

"[TIAA-CREF] 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." 

In this case, the Policy Statement and CREF's practices thereunder address the 

Proposal's essential objectives of ending investments in companies that, in CREF's 

judgment, substantially contribute to or enable egregious violations of human rights. 

Accordingly, CREF already has developed and implemented a comprehensive policy that 

"compares favorably with the guidelines of the [P]roposal" and that implements the 

essential objective of the Proposal. Indeed, to the extent Proponent disagrees with the 

implementation of that policy, such disagreement only highlights why the Proposal should 

be excluded as infringing on CREF's "ordinary business operations" as described above. 

Therefore, the Proposal may be omitted from CREF's 2013 Proxy Materials pursuant to 

Rule 14a-8(i)(l 0). 

II. CONCLUSION 

In view of the fact that (1) the Proposal deals with matters relating to CREF's 

ordinary business operations, and (2) the Proposal is already substantially implemented, it 

is our opinion that CREF, in accordance with Rules 14a-8(i)(7) and 14a-8(i)(l 0), is 

permitted to exclude the Proposal from its 2013 Proxy Materials. Based on the foregoing, 

CREF respectfully requests confirmation from the Staff that it will not recommend 

enforcement action to the Commission ifCREF excludes the Proposal from its 2013 Proxy 
copies of this letter and its attachments are enclosed and a copy is being forwarded 

concurrently to the Proponent. 

cc: JeffreyS. Puretz, Esq. Dechert LLP 

Thomas C. Bogle, Esq. Dechert LLP 

Adam T. Teufel, Esq. Dechert LLP 

Attachments: 

Proposal (Exhibit A) 

2011 No-Action Letter (Exhibit B) 

17982507 

Very truly yours, 

Phillip T. Rollock 

Senior Managing Director and 

Corporate Secretary 

College Retirement Equities Fund 
Exhibit A 
january 14, 2013 

Phillip T. Rollock 

Senior VP and Corporate Secretary 

TIAA-CREF I Financial Services 

730 Third Avenue, 12th Floor 

New York, NY 10017 

Via fax: 212-916-6800 (3 pages including this one) 

Dear Mr. Rollock: 

I submit the accompanying proposal to CREF for inclusion in the 2013 proxy statement 

under Rule 14 a-8 of the General Rules and Regulations of the Securities and Exchange Act of 1934. 

It requests 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. 

I have held investments with CREF worth more than $2,000 in market value continuously 

for the past year. I intend to continue to hold CREF investments of at least this value through the 

date of the 2013 CREF annual meeting of shareholders and will attend that meeting to present the 

proposal below, either personally or by a representative qualified under state law to present the proposal on my behalf. I am the lead filer of this proposal. 

If it is the company's intent to exclude my proposal, I am by this letter asking that you 

simultaneously send me, upon filing, a copy of your submission under SEC Rule 14a-8. If you 

intend or are required to include the accompanying resolution in the proxy statement, please send 

me a copy of any statement in opposition to my proposal that you may decide to include, as soon as 

it is ready and in no event later than 30 calendar days before TIAA-CREF files definitive copies of its 

proxy statement and form of proxy under Rule 14a-6 or five calendar days after you receive a copy 

of any revised proposal that I may file in order to comply with any SEC requirements for including it 

with proxy materials. 

If the information provided in this letter is insufficient for you to confirm my eligibility as a 

qualified filer of the accompanying resolution, please notify me in writing by email and letter as 

soon as possible, and no later than 14 calendar days of receiving this letter, of any procedural or 

eligibility deficiencies, as well as of the deadline by which you will need to receive my response. If I 

am able to correct the deficiency, I will email my response to you by that deadline. 

Sincerely yours, Steve Tamari 
WHEREAS, 

TIAA-CREF believes that when companies focus on being socially responsible, 

they may reduce risk and thereby achieve better financial performance; 

TIAA-CREF's Social Choice accounts invest based on environmental, social, and 

governance (ESG) criteria, including a commitment to honor human rights; 

As a signatory to the UN Principles for Responsible Investing, TIAA-CREF 

"incorporate[s] ESG issues into investment analysis and decision-making 

processes"; 

Despite those policies, CREF nevertheless invests in companies whose 

operations raise serious human rights concerns. For example, its Social Choice 

accounts include investments in Veolia Environment; 

Veolia Environment and its subsidiaries operate the Tovlan Landfill in the 

occupied West Bank, processing and dumping waste materials there from Israel 

and illegal West Bank settlements, in violation of a UN General Assembly 

Resolution calling upon Israel to cease dumping such waste on occupied 

Palestinian land; 

Veolia Environment owns at least 40% of Transdev, which through its 

subsidiaries operates segregated bus services to Israeli settlers in the occupied 

West Bank and a light rail that connects illegal West Bank settlements to 

Jerusalem; 

Investments in companies providing support for the Israeli occupation 

and segregated settlements in the West Bank, including East Jerusalem, 

represent a significant policy issue: 
Israel continues to maintain and even accelerate settlement of the West 

Bank and East Jerusalem, even after the UN General Assembly in 

December 2012 recognized Palestine as a non-member state, with only 

eight countries voting "nay"; 

The U.S. officially opposes continued Israeli settlement activity; 

Human Rights Watch calls on companies that "contribute to and/or 

benefit from violations of Palestinian residents' human rights" to either 

end their involvement in such violations or end operations altogether, 

"where business activity directly contributes to serious violations of 

international law, including prohibitions against discrimination"; 

The U.N. Special Rapporteur on the situation of human rights in the 

occupied Palestinian territories has recommended boycotting such 

companies, including Veolia Environment, and has warned that these 

companies may expect damage to their public image, impact on 

shareholder decisions and share price, and potential criminal or civil 

liability for breaches of international human rights and humanitarian Jaw; 

Leaders of 15 major churches in the U.S. in October 2012 called on 

Congress to suspend U.S. military aid to Israel if investigation discloses 

that Israel is using such aid in violation of U.S Jaw; 

The United Methodist and Presbyterian Church (USA) and the United 

Church of Canada have called for boycott of Israeli settlement goods; 

South Africa, the U.K., and Denmark advise that settlement goods not be 

labeled as 'Made in Israel,' and over 20 NGOs are asking the European 

Union to take similar steps; 
Exhibit B 
No-Action Letter: College Retirement Equities Fund ("Fund") Shareholder Proposal of A... Page 1 of2 

Home I Previous Page 

.S. Secunties and Exchange Comm1ssio 

Securities Exchange Act of 1934 - Rule 14a-S(i)(7) 

College Retirement Equities Fund ("Fund") Shareholder Proposal of 

Aaron Levitt 

May 6, 2011 

William J. Mostyn, III 

Senior Vice President and 

Corporate Secretary 

TIAA-CREF 

One Beacon Street 

Boston, MA 02108 

Re: College Retirement Equities Fund ("Fund") 

Shareholder Proposal of Aaron Levitt 

Dear Mr. Mostyn: 

In a letter dated March 22, 2011, you notified the staff of the Securities and 

Exchange Commission ("Commission") that the Fund intends to exclude 

from its proxy materials for its 2011 annual meeting a shareholder proposal 

submitted by letter dated February 11, 2011, from Aaron Levitt.l The 

proposal provides: 

THEREFORE BE IT RESOLVED that the participants request CREF to 

engage with corporations in its portfolio, such as Caterpillar, Veolia, and 

Elbit, that operate on the West Bank and East Jerusalem with the goal 

of ending all practices by which they profit from the Israeli occupation. 

If, by the annual meeting of 2012, there is no commitment to 

cooperate, CREF should consider divesting as soon as market conditions 

permit. 

There appears to be some basis for your view that the proposal may be 

omitted from the Fund's proxy materials pursuant to Rule 14a-8(i)(7) under 

the Securities Exchange Act of 1934, as relating to CREF's ordinary 

business operations. 

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No-Action Letter: College Retirement Equities Fund ("Fund") Shareholder Proposal of A.. Page 2 of 2 

Attached is a description of the informal procedures the Division follows in 

responding to shareholder proposals. If you have any questions or 

comments concerning this matter, please call me at (202) 551-6795. 

Attachment 

cc: Aaron Levitt 

Sincerely, 

Michael L. Kosoff 

Branch Chief 

1 We also received a letter submitted on behalf of the proponent dated April 

21, 2011, and a letter from the Fund dated April 27, 2011. 

Incoming Letters 

• TIAA CREF Initial Submission (March 22, 2011) • Proponent's Letter (April 21, 2011) 

• TIAA CREF Response (April 27, 2011) 

http:/ jwww.sec.govjdivisionsjinvestmentjnoactionj2011jcref-levitt050611-

14a8.htm 

Home I Previous Page Modified: 05/06/2011 
TlAA 

CREF 

FINAI'ICIAL SERVICES 

FOR THE GREATER GOOD' 

April27, 2011 VIA HAND DELIVERY 

William J. Kotapish, Esq. 

Assistant Director 

Division of Investment Management 

U.S. Securities and Exchange Commission 

100 F Street, N .E. 

Washington, DC 20549 

William J. Mostyn, Ill 

Senior Vice President and 

Corporate Secretary 

Tel: (617) 788-5969 

Fax: (617) 788-5959 

wmostyn@tiaa-cref.org 

Re: The College Retirement Equities Fund- 2011 Annual Meeting 

Omission of Shareholder Proposal of Aaron Levitt et al. 

Dear Mr. Kotapish: 

This letter responds to the submission to you from Paul M. Neuhauser dated April 21, 2011 

concerning our request dated March 22,2011 to omit from CREF's 2011 Proxy Materials a 

proposal for shareholder action, together with a supporting statement, on the following 

resolution (the "Proposal"): 

THEREFORE BE IT RESOLVED that the participants request CREF to 

engage with corporations in its portfolio, such as Caterpillar, Veolia, and 

Elbit, that operate on the West Bank and East Jerusalem with the goal of 

ending all practices by which they profit from the Israeli occupation. If, by 

the annual meeting of2012, there is no commitment from these companies 

to cooperate, CREF should consider divesting as soon as market conditions 

permit. 

Mr. Neuhauser's letter expresses the opinion that the Proposal "must be included in 

CREF's year 2011 proxy statement and that it is not excludable by virtue of any of the cited 

rules." 

For the reasons stated in our March 22 letter, we disagree with Mr. Neuhauser's opinion 

and believe the Proposal is properly excludable. In addition, we have the following 

specific responses to Mr. Neuhauser's submission (the "Submission") that we ask the staff 

consider in responding to our request. 
requires only that the issuer have implemented the "essential objective" of the proposal, 

even where the company's actions do not fully comply with the specific dictates of the 

proposal. 1 

The essential objective of the Proposal is engagement of portfolio companies and 

consideration of divestment in appropriate cases. As more fully described in our March 22 

letter, CREF fulfills this objective on an ongoing basis, in accordance with the TIAACREF Policy Statement on Corporate Governance (the "Policy Statement"), which 

provides for review and engagement with portfolio companies on a broad range of social, 

environmental and governance issues, including human rights? And, in one recent 

instance, as a result of this process, CREF determined to divest from companies with 

material business dealings in Sudan. Clearly, this is a meaningful process that the 

organization treats with the utmost seriousness. 

Indeed, Mr. Neuhauser's own characterization of the Proposal makes clear that it has been 

substantially implemented. The Submission describes the essential objective of the 

Proposal as "request[ing] CREF to review its investments in companies that operate in the 

occupied territories of the West Bank and Jerusalem." By his own words, he recognizes 

that review is the key. As noted above, a review of portfolio companies is a central 

component of the Policy Statement. Accordingly, the Proposal has been substantially 

implemented. 3 

2. The Submission incorrectly states that "the Staff has long held that shareholder 

proposals concerning human rights abuses in the Occupied Territories raise 

important policy issues" 

The Submission relies on a 1991 letter to American Telephone & Telegraph Company for 

the proposition that "the Staff has already opined that shareholder proposals concerning 

human rights abuses in the Occupied Territories do, indeed, raise a significant policy 

issue." In fact, the following year, the staff stated the opposite view in a letter to the same 

issuer: "the policy issue raised by the proposal, Israel's treatment of Palestinians, is not 

signifi£ant, and in fact is not related, to the Company's business." (emphasis added).4 

See Caterpillar Inc., SEC No-Action Letter (avail. Mar. II, 2008); Wal-Mart Stores, Inc., SEC No-Action Letter 

(avail. Mar. 10, 2008); PG&E Corp., SEC No-Action Letter (avail. Mar. 6, 2008); The Dow Chemical Co., SEC 

No-Action Letter (avail. Mar. 5, 2008); Johnson & Johnson, SEC No-Action Letter (avail. Feb. 22, 2008). 

The Submission mistakenly states that TIAA-CREF's "ESG" strategy for socially responsible investing, referred 

to in note 20 of our March 22 letter, "applies solely to environmental matters." "ESG" refers to environmental, 

social and governance issues, and extends to human rights issues, among other social issues. Also, this strategy 

applies to all CREF public equity portfolio investments

not just those in its Social Choice Account
While the two letters addressed different provisions of Rule 14a-8, we do not see how a 

policy issue can be both significant and not significant at the same time. Accordingly, we 

do not believe - and do not think it is the common understanding - that following the 

second letter it has been the staffs "long held" view that shareholder proposals concerning 

"human rights abuses in the Occupied Territories" raise significant policy issues requiring 

their inclusion in proxy materials. 

3. There is no bright-line rule requiring inclusion of proposals self-designated as 

"human rights proposals" 

Mr. Neuhauser argues that any shareholder proposal that refers to human rights raises a 

significant policy issue and must, by that reason alone, survive any exclusion challenge. 

This "bright-line" approach conflicts with the longstanding views of the Commission and 

its staff that the determination of whether there is a significant policy issue must be made 

on a case by case basis, after considering "factors such as the nature of the proposal and the 

circumstances of the relevant company."5 The staffs determination under the ordinary 

business exclusion requires exercise of its judgment in applying the relevant standards to 

the facts at hand. The Commission requires these judgments to include: 

• whether a particular proposal relates to activities that are "so fundamental to 

management's ability to run a company on a day-to-day basis that they could not, 

as a practical matter, be subject to direct shareholder oversight"; 

• whether a particular social policy issue would "transcend the day-to-day business 

matters and raise policy issues so significant that it would be appropriate for a 

shareholder vote"; and 

• whether the proposal "prob[ es] too deeply into matters of a complex nature upon 

which shareholders, as a group, would not be in a position to make an informed 

judgment." 

In fact, the staff has tried a bright-line approach in the past, but abandoned it in favor ofthe 

case-by-case analytical approach.6 

As we explain in our March 22 letter, exclusion of the Proposal under Rule 14a-8(i)(7) is 

appropriate based on the circumstances of this case - CREF's specific business operations, 

the nature of this particular Proposal, and relevant precedents, including precedents 
companies' proxy materials does not create a general "human rights" rule that trumps all 

other exclusions and circumstances.7 

4. The Submission inappropriately probes into matters of a complex nature upon 

which shareholders, as a group, will not be in a position to make an informed 

judgment 

The Submission asserts that there is a worldwide consensus on the validity of the 

allegations made in the Proposal, similar to the consensus regarding human rights 

violations in Sudan. In fact, Mr. Neuhauser states that anyone who disagrees with the view 

expressed by his clients "stands virtually alone."8 As discussed in our March 22 letter, we 

believe the Proposal inappropriately seeks a shareholder referendum on a complex and 

highly controversial geopolitical dispute. This is a classic instance of a proposal that 

"prob[ es] too deeply into matters of a complex nature upon which shareholders, as a group, 

would not be in a position to make an informed judgment."9 Moreover, based on the onesided view the Submission takes on this controversial and complex issue, reflecting a denial 

even of the existence of any good faith views that differ with those of the Proponents, we 

continue to believe that the debate likely to arise from putting this issue in the CREF Proxy 

Materials will not and cannot be full, fair and consistent with the spirit ofRule 14a-9. 

For these reasons, and the reasons set forth in our March 22 letter, we again respectfully 

request that the Staff confirm it will not recommend enforcement action if CREF excludes 

the Proposal from its 2011 Proxy Statement.10 

In seeking to justifY his opinion under the ordinary business exclusion, Mr. Neuhauser cites only a single authority 

involving an investment company. In that case (Fidelity Funds, SEC No-Action Letter (avail. January 22, 2008)), 

the proposal was entirely different from the Proposal at issue here, and thus provides no meaningful guidance. 

Among other differences, the resolution proposed (which is set forth below) was general in nature, and requested 

oversight procedures that defer to the judgment of the Board (rather than dictating specific investment actions and 

timeframes). Moreover, as the supporting statement indicates, the resolution was directed to activities in Sudan, 

where as Mr. Neuhauser himself points out, United States law prohibits direct investment, and indeed facilitates 

divestment in companies that do business in Sudan. See Sudan Accountability and Divestment Act of2007, Pub. 

L. No. 110-174, 121 Stat. 2516 (2007). In stark contrast, the United States does not prohibit investment in Israel, 

or facilitate divestment from companies that do business in Israel. Indeed, United States law specifically prohibits 

companies from taking certain actions in furtherance of various boycotts against Israel. See Export Administration 

Amendments of 1977, Pub. L. No. 95-52,91 Stat. 1625 (1977); see also, Ribicoff Amendment to the Tax Reform 

Act of1976 Pub. L. 94-455,90 Stat. 1520 (1976), which added section 999 to the Internal Revenue Code of 1986, 

as amended 26 U.S.C. §I et seq. The resolution in the Fidelity Funds proposal is as follows: 

"RESOLVED: In order to ensure that Fidelity is an ethically managed company that respects the 

spirit of international law and is a responsible member of society, shareholders request that the 

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Yours truly, 

William J. Mostyn, III 

Senior Vice President and Corporate Secretary 

College Retirement Equities Fund 

Cc: Jeffrey S. Puretz, Esq. Dechert LLP 

Ruth S. Epstein, Esq. Dechert LLP 
PAUL M. NEUHAUSER 

Attorney at Law (Admitted New York and Iowa) 

1253 North Basin Lane 

Siesta Key Sarasota, FL 34242 

Tel and Fax: (941) 349-6164 

Securities & Exchange Commission 

100 F Street, NE 

Washington, D.C. 20549 

Att: William J. Kotapish, Esq. 

Assistant Director 

Division of Investment Management 

Email: pmneuhauser@aol.com 

April21, 2011 

Via email to shareholderproposals@sec.gov 

Re: Shareholder Proposal submitted to the College Retirement Equities Fund 

Dear Sir/Madam: 

I have been asked by the more than 20 participants (hereinafter referred to as 

the "Proponents") in the College Retirement Equities Fund (hereinafter referred to 

as "CREF" or the "Company"), who have jointly submitted a shareholder proposal 

to CREF, to respond to the letter dated March 22, 2011, sent to the Securities & 

Exchange Commission by CREF, in which CREF contends that the Proponents' 

shareholder proposal may be excluded from the Company's year 2011 proxy 

statement by virtue ofRules 14a-8(i)(11), 14a-8(i)(7), 14a-8(i)(10) and 14a-8(i)(3). 
The Proponents' shareholder proposal requests CREF to review its 

investments in companies that operate in the occupied territories of the West Bank 

and Jerusalem. 

RULE 14a-8(i)(l1) 

We note that CREF states in footnote 1 on page one of its letter to the 

Commission that it "intends to exclude all of the other proposals" other than that 

submitted by Mr. Aaron Levitt "on the grounds that they are duplicative" of the 

proposal submitted by Mr. Levitt. However, CREF acknowledges that all such 

"participants indicate that Mr. Aaron Levitt will act as the lead filer". Under these 

circumstances, the various participants are acting as co-proponents with Mr. Levitt 

and under Rule 14a-8 their co-sponsorship must be acknowledged by CREF. 

The purpose of Rule 14a-8(i)(11) is "to eliminate the possibility of 

shareholders having to consider two or more substantially identical proposals". 

Release 34-12,598 (July 7, 1976). However, the purpose of that Rule is not to 

eliminate the co-sponsorship of a single proposal by multiple shareholders or 

participants. 

The Proponents do not intend, and never have intended, that more than one 

shareholder proposal appear in the Company's proxy statement. On the contrary, 

as noted by CREF in the cited footnote, they intended to be co-sponsors of the 

same proposal, and not to be independent sponsors of separate proposals. 

It is therefore factually apparent that only one shareholder proposal has been 

submitted to CREF, which shareholder proposal is co-sponsored by the various 

participants. Under these circumstances, only one shareholder proposal is to be 

placed in the proxy statement, but the Company must recognize all co-sponsors of 

the proposal. In this connection, it should be noted that the Staff has explicitly 

recognized that proposals can be co-sponsored by more than one shareholder. See 

Staff Legal Bulletin No

14C

Section H (June 28

2005); Staff Legal Bulletin No
We are unable to concur in your view that ConocoPhillips may exclude the 

proposals under rule 14a-8(i)(11). It appears to us that the School Sisters of 

Notre Dame, the Church Pension Fund and Bon Secours Health System, 

Inc., have indicated their intention to co-sponsor the proposal submitted by 

the Domestic & Foreign Missionary Society of the Episcopal Church. 

In other situations factually virtually identical to the instant one, the Staff in 

has reached the identical result that it reached in the ConocoPhillips letter. See 

Caterpillar, Inc. (March 26, 2008); Tyson Foods, Inc. (December 15, 2009). 

In conclusion, it is factually clear that each of the Proponents has jointly cosponsored a single shareholder proposal (and not submitted separate proposals) and 

that such co-sponsorship is contemplated by Rule 14a-8. 

For the foregoing reasons, the Company has failed to carry its burden of 

proving that the exclusion of Rule 14a-8(i)(11) applies to the shareholder proposal 

submitted by any of the Proponents. 

RULE 14a-8(i)(10) 

CREF has not substantially implemented the Proponents' shareholder 

proposal. 

The Company's claim to mootness is based in part on footnote 20, on page 6 

of its letter. However, all three of the "strategies" delineated there are irrelevant to 

the Proponents' shareholder proposals, since (1) applies solely to the Company's 

small Social Choice Account and not to its principal investment vehicles; (2) 

applies solely to environmental matters; and (3) applies solely to pro-active socalled "alternative investing". None of these three "strategies" relates in any way 

whatsoever to the Proponents' human rights concerns. 

In addition, the Company claims that its so-called "Policy Statement on 

Corporate Governance" renders the Proponents' proposal moot

Although this 
connection, we note that although CREF states that it has voted on a general 

human rights shareholder proposal at Caterpillar, the Company makes no claim 

that it has ever undertaken with Caterpillar in the type of activity requested by the 

shareholder proposal, namely to "engage" with portfolio companies in order to 

achieve a "goal of ending all practices by which they profit from the Israeli 

occupation". We also note that Caterpillar is but one of several companies in the 

CREF portfolio that has some connection to the Occupied Territories, and even if 

CREF were actually to engage with a single portfolio company, that could never 

"substantially implement" the proposal when the portfolio contains numerous 

companies with such a connection. 

The Proponents are requesting the Company to take exactly the type of proactive stance that it took with respect to portfolio investments in companies that 

were operating in the Sudan. Since CREF has done nothing of the sort, it has 

failed to establish the applicability ofRule 14a-8(i)(10) the Proponents' 

shareholder proposal. 

RULE 14a-8(i)(7) 

The proposal raises a significant policy issue that precludes its 

exclusion on ordinary business grounds. 

We are surprised that CREF has argued that the proposal is excludable 

because it deals with the ordinary business operations of the Company. In so doing 

CREF not only fails to apply to the instant proposal the consistent Staff position 

that human rights proposals raise significant policy issues, but it also fails to note 

that the Staff has ruled that proposals submitted to portfolio managers with respect 

to the human rights related activities of their portfolio companies are not 

excludable under the "ordinary business" rubric for the simple reason that they 

raise significant policy issues for the portfolio manager. Fidelity Funds (January 

22, 2008). Finally, CREF has failed to appreciate the fact that the Staff has already 

opined that shareholder proposals concerning human rights abuses in the Occupied 

Territories do, indeed, raise a significant policy issue. American Telephone and 

Telegraph Company (January 16

1991) 
considered excludable, because the proposals would transcend the day to day 

business matters .... "). We doubt that anyone would seriously contend that a 

shareholder proposal, such as that submitted by the Proponents, that implicates 

violations of human rights fails to meet this standard. Thus, the Staff has 

consistently and uniformly found that human rights proposals raise significant 

policy issues. See, e.g., Halliburton Company (March 9, 2009); Chevron 

Corporation (March 21, 2008); American International Group, Inc., (March 14, 

2008); Nucor Corporation (March 6, 2008); Bank of America Corporation 

(February 29, 2008); Abbott Laboratories (February 28, 2008); PepsiCo, Inc. 

(February 28, 2008); Citigroup Inc. (February 21, 2008); Certain Fidelity Funds 

(January 22, 2008); Yahoo! Inc. (April16, 2007); V.F. Corporation (February 13, 

2004); E.I. duPont de Nemours and Company (February 11, 2004); BJ Services 

Company (December 10, 2003; The TJX Companies, Inc. (AprilS, 2002); WalMart Stores, Inc. (April3, 2002); E.I. duPont de Nemours and Company (March 

11, 2002); The Stride Rite Corporation (January 16, 2002); American Eagle 

Outfitters, Inc. (March 20,2001: PPG Industries, Inc. (January 22, 2001), 

As noted above, the Staff has applied identical analysis to a human rights 

proposal submitted to a portfolio manager (similar to CREF) and found that that 

proposal does, in fact, raise a significant policy issue for the portfolio manager. 

Fidelity Funds (January 22, 2008). 

The Staff no-action letters cited by the Company are inapposite. The 

shareholder proposal in the CREF no-action letter of September 7, 2000 (cited in 

footnote 8 on page 4 of the Company's letter) did not raise a human rights concern. 

Furthermore, it requested the divestiture of only one named company. On its face, 

therefore, that shareholder proposal did not raise a general policy issue for the 

registrant. In contrast, the Proponents' proposal is general in nature, applicable to 

the entire portfolio, thereby raising a policy issue for the registrant. The fact that 

the proposal cites three specific companies that may be involved in the Occupied 

Territories does not in any way detract from the fact that the proposal is not limited 

to those specific companies, but rather applies to all companies in the portfolio. 

Furthermore, although the shareholder proposal at issue in 2000 called for the 

divestment of a specific issuer, the Proponents' proposal merely asks CREF to 

"consider" divesting if the portfolio companies' conduct remains unchanged

In 
footnote 14 (page 5) did not involve Rule 14a-8(i)(7), but rather another exclusion 

under the rule. Consequently, they are irrelevant to the question of whether Rule 

14a-8(i)(7) bars the Proponents' shareholder proposal. 

In addition, we note that the Company contends that implementation of the 

Proponents' shareholder proposal would interfere with its policy of choosing 

"quiet diplomacy". (See first sentence of second full paragraph, page 4 of its 

letter.) However, such quiet diplomacy is exactly what the proposal is requesting, 

but there is not one iota of evidence that CREF has actually engaged in any "quiet 

diplomacy" with respect to the issue at hand. (See Rule 14a-8(i)(10) discussion 

above.) 

Finally, we note that the Company contends that no significant policy issue 

is involved, apparently because it does not believe that human rights issues are 

implicated by Israeli activities in the Occupied Territories. (See the carryover 

sentence on pages 5-6 of its letter.) 

In this, the Company stands virtually alone. 

For example, the most recent (2011) Report of Human Rights Watch has the 

following to say about the human right situation in Israeli occupied West Bank: 

World Report 2011: Israel/Occupied Palestinian Territories 

Events of2010 

The human rights crisis (emphasis supplied) in the Occupied Palestinian 

Territories (OPT) continued in 2010, despite marginal improvements .... 

In the West Bank, including East Jerusalem, Israel imposed severe 

restrictions on Palestinian freedom of movement, demolished scores of 

homes under discriminatory practices, continued unlawful settlement 

construction and arbitrarily detained children and adults .... 

Israeli forces in the West Bank killed at least seven Palestinian civilians as 

of October. According to B'Tselem, those killed, including two young men 

collecting scrap metal and two children participating in a demonstration inside their village, posed no danger to Israeli military forces or civilians. 

Israeli settlers destroyed or damages mosques

olive trees

cars

and other 
Israeli military justice authorities detained Palestinians who advocated nonviolent protest against Israeli settlements and the route of the separation 

barrier .... 

As of September, Israel held 189 Palestinians in administrative detention 

without charge. 

On January 11, 2011, Human Rights Watch issued a press release entitled 

"Israel/West Bank: Jail for Peaceful Protesters" in which it stated that the 

conviction of a Palestinian had raised "grave due process concerns". It further 

stated that "the conviction was based on allegations that did not specify any 

particular incidents of wrongdoing and on statements by children who retracted 

them in court" and who had been interrogated in Hebrew, a language they did not 

understand. (See www.hrw.org/en/news/2011/01/12/israelwest-bank) 

In addition, Human Rights Watch published last December a report on 

businesses that profit from doing business with West Bank settlements, and made 

several recommendation, including implementing "strategies to prevent and 

mitigate any corporate involvement in such [human rights] abuses" and "where 

business activity directly contributes to serious violations of international law ... 

take action to end such involvement in legal violations, including where necessary 

ending such operations altogether". See Separate and Unequal, subpart II, 

"Recommendations to Businesses Profiting from Settlements". (December 19, 

201 0) www .hrw .org/en/reports/20 10/12/19 

Similarly, Freedom House (20 10 edition), which rates the status of all of the 

nations of the world, ranks the Occupied Territories as follows (where 1 is the 

highest and 7 the lowest): 

Political Rights Score: 6 

Civil Liberties Score: 6 

Status: Not Free 

Other nations equally ranked as "6" include such human rights abusers as 

Afghanistan, Iran, Tunisia,. Vietnam and Zimbabwe, and are ranked just barely 

above nations such as China

Cuba

Saudi Arabia and Syria

(See 
Principal human rights problems related to Israeli authorities in the West 

Bank were reports of excessive use of force against civilians, including 

killings, torture of Palestinian detainees, improper use of security detention 

procedures, austere and overcrowded detention facilities, demolition and 

confiscation of Palestinian properties, limits on freedom of speech and 

assembly, and severe restrictions on Palestinians' internal and external 

freedom of movement. 

Consequently, it is scarcely surprising that the Staff has long held that 

shareholder proposals concerning human rights abuses in the Occupied Territories 

raise important policy issues. American Telephone and Telegraph Company 

(January 16, 1991). 

In addition, it should be noted that divestiture of companies involved in 

business in the West Bank have taken place at a number of European financial 

institutions, including the Norwegian governmental pension plan, the largest 

Swedish pension plan, Danske Bank, Folksam (Sweden's largest asset manager), 

PKA Ltd (large Danish pension plan) and Dexia (Belgian-Franch). 

Finally, we believe that the only attempt by the Company to establish that 

the Proponents' proposal fails to raise a policy issue actually proves the reverse, 

namely that it does raise an important policy issue. In the carryover sentence on 

pages 5-6 the Company cites a vote in the United Nations Security Council in 

support of its position. In that vote fourteen members of the Security Council voted 

for the condemnation of Israel and one, the United States, voted against it. The 

United States vote constituted a veto of a resolution otherwise unanimously agreed 

to by all of the other members of the Security Council. Whether the United States 

was right or wrong to veto the condemnation is not the issue. The issue is whether 

the shareholder proposal raises an important policy issue, not whether the views of 

the Proponents, or of the United States, are correct. Such an all but unanimous 

vote by the responsible nations of the world provides irrefutable proof that the 

Proponents' shareholder proposal implicates an important policy issue. 

For the foregoing reasons, CREF has failed to establish the applicability of 

Rule 14a

8(i)(7) to the Proponents' shareholder proposal
the wording of shareholder proposals, and, in particular, raising objections that 

proponent's statements really constituted opinions (although not labeled as such) 

or were statements of fact that were disputable. Thus, the Bulletin stated (section 

B.l.4.): 

Accordingly, we are clarifying our views with regard to the application of 

rule 14a-8(i)(3) .... going forward, we believe that it would not be appropriate 

for companies to exclude supporting statement language and/or an entire 

proposal in reliance on rule 14a-8(i)(3) in the following circumstances 

• 

• the company objects to factual assertions that, while not materially false or 

misleading, may be disputed or countered; 

• 

• the company objects to statements because they represent the opinion of the 

shareholder proponent or a referenced source, but the statements are not 

identified specifically as such. 

It is clear that the company's objections are precisely of the type that the Staff 

Legal Bulletin was intended to obviate. Thus the Company (final paragraph, page 

8) complains that some statements are "highly controversial and subject to widely 

differing views as to their accuracy and implications" and are contrary to policy 

positions taken by the United States government. Even if true, the Staff Legal 

Bulletin clearly establishes that such alleged deficiencies are not sufficient grounds 

for the invocation of Rule 14a-8(i)(3). Similarly, CREF claims that the Proponents 

have misconstrued the CREF Social Responsible Investing Report (the "Report"). 

Once again, the Staff Legal Bulletin would appear to preclude any 14a-8(i)(3) 

objection. In any event, the characterization by the Proponents of the Company's 

Report would appear to be accurate, since that Report states (page 8) that "We 

believe that companies should respect human rights by ... avoiding complicity in 

human rights abuses committed by others". 

Furthermore, the position taken by the Proponents is "not contrary to positions 

taken by the United States government" as alleged in the final paragraph on page 8 

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In summary, the Company has failed to establish that any statement by the 

Proponents violates Rule 14a-8(i)(3). 

Two fmal points. First, even if the Company's arguments were to be accepted, 

the only result would be that some phrases or sentences would have to be excised, 

but the entire proposal would not be excludable. Second, if the Staff were to 

disagree with our position, the Proponents' would be willing to amend the proposal 

to eliminate any portion deemed to be false or misleading. 

In conclusion, we request the Staff to inform the Company that the SEC 

proxy rules require denial of the Company's no action request. 

Subject to the supplemental information provided in the next paragraph, we 

would appreciate your telephoning the undersigned at 941-349-6164 with respect 

to any questions in connection with this matter or if the Staff wishes any further 

information. Faxes can be received at the same number. Please also note that the 

undersigned may be reached by mail or express delivery at the letterhead address 

(or via the email address). 

Please note, however, that the undersigned will be out of the country April 

27- May 16, but will have sporadic access to email. During that period please send 

any communication by email and copy any such communication to Ms. Barbara 

Harvey, Esq., whose email is blmharvey@sbcglobal.net; tel and fax 313-567-4228. 

Very truly yours, 

Paul M. Neuhauser 

Attorney at Law 
March 22. 20 ll 

VIA HAND DELIVERY 

William J. Kotapish, Esq. 

Assistant Director 

Division oflnvestment Management 

U.S. Securities and Exchange Commission 

100 f Street, N.E. 

Washington, DC 20549 

William J. Mostyn, Ill 

Senior Vice President and 

Corporate Secretary 

Tel: (617) 7&8-5969 

Fax: (617) 788-5959 

wmcx.1Yil@tiaa-cref.org 

Re: The College Retirement Equities Fund- 2011 Annual Meeting 

Omission of Shareholder Proposal ofAaron Levitt et al. 

Dear Mr. Kotapish: 

The College Retirement Equities Fund \'CREP) hereby gives notice to the staff ('•Staff') 

of the Securities and Exchange Commission ('"Commission'') of CREF's intention to omit 

from its proxy statement and form of proxy ('-20 II Proxy Materials") a shareholder 

proposal and supporting statement that were submitted to CREF by Aaron Levitt (the 

"Prop<:ment''), dated February 11, 20 II {the ''Proposal"), 1 for CREF's 20 II annual meeting.~ The Proposal requests certain investment-related actions in regard to portfolio companies in 

which CREF invests that, according to the Proposal, "profit from their complicity in human 

rights abuses and violations oflaw committed to maintain and expand Israel's occupation of 

the West Bank." Specifically. the Proposal requests shareholder action on the follmving 

resolution: 

THEREFORE BE IT RESOLVED that the participants request CREF 

to engage with corporations in its portfolio, such as Caterpillar, Veolia, 

and Elbit, that operate on the West Bank and East Jerusalem with the 

goal of ending all practices by which they profit from the Israeli 

occupation. If, by the annual meeting of2012, there is no commitment 

Several CREF participanl\ submitted Identical !l")posals fur inclusion m the :?0 II l'roxy Materm!s. In re!ared 

l:Orte!;pondence, the participllntS ind~eate that Mr. ANon Levitt will act as the li!.'ld filer. CREF in~~:nds 10 omit all of 

these propolial$ and the term "Proposal" as used in this letter

refers 1u these proposals as well

lfCREl' \\'Cre to include 
to cooperate, CREF should consider divesting as soon as market 

conditions permit. 

The Proposal would interfere with CREF's investment decision making process, by 

allowing shareholders to direct or influence CREf's selection of portfolio securities and its 

ongoing efforts to promote long-term investment value by engaging portfolio companies in 

dialogue on environmental, social, and governance issues. The Proposal advocates one 

side in a highly controversial and complex geopolitical dispute, and makes assertions of 

immoral and illegal conduct that are subject to widespread disagreement. Requiring CREF 

to include the Proposal in its proxy materials. and to respond to these statements. would 

make the CREF proxy materials a forum for debate and referendum on this political issue. 

This would be contrary to the purpose of the Commission's proxy rules and its 

longstanding interpretations of those rules. 

As more fully discussed below. we believe that Rule l4a-8 under the Securities Exchange 

Act of 1934, as amended ("Exchange Acf'), permits CREF to omit the Proposal from the 

2011 Proxy Materials based on three express exclusions: (l) the Proposal deals with a 

matter relating to CREF's ordinary business operations, and thus is excludable pursuant to 

subparagraph (i}(7) of Rule 14a-8; (2) the essential objective of the Proposal has already 

been substantially implemented. and thus the Proposal is excludable pursuant to 

subparagraph (i){ 1 0) of Rule 14a-S; and (3) the Proposal is misleading in contravention of 

Rule 14a-9 under the Exchange Act, and thus is e.xctudable pursuant to subparagraph (i)(3) 

ofRule 14a-8. 

For these reasons. we request the Staff to confirm that it will not recommend that 

enforcement action be taken ifCREF omits the Proposal from its 2011 Proxy Materials. 

Please be advised that; pursuant to paragraph (j) of Rule 14a-8, CREF has simultaneously 

notified the .Proponent of its intent to omit the Proposal from its 20 II Proxy Materials by a 

copy of this letter. 

CREF is a non*prot1t corporation established under the laws of New York State and 

registered with the Commission as a diversified management investment company under 

the Investment Company Act of 1940. as amended.3 CREF and Teachers Insurance and 

Annuity Association of America ("'TlAA'') form the principal retirement system for the 

nation's education and research communities. The financial services organization of whiCh 

both companies are a part is sometimes referred to as "TIAA~CREF.''
fl. ANALYSIS 

A. Tile Proposal may be excluded under Rule 14a-8(i)(7) because it deals with 

matters relating to CREF's ordinary b~iness operations. 

A proposal may be omitted under Rule 14a~8{i)(7) if it, "deals with a matter relating to the 

company's ordinary business operations:' This paragraph of the rule is captioned 

"'management functions:' The Commission has explained. that the policy underlying the 

ordinary business exclusion under Rule l4a-8(iX7) rests on two central considerations. 

11te first consideration is that "certain tasks are so fundamental to management~s ability to 

run a company on a day-to-day basis that they could not. as a practical matter, be subjecl to 

direct shareholder oversight.·· The second consideration relates to "the degree to which the 

proposal seeks to 'micro-manage' the company by probing too deeply into matters of a 

complex nature upon whi.ch stockholders. as a group. would not be in a position to make an 

inti:>rmed judgment.'9 

I. The Proposal impermissibly seeks to subject fundamental 

management functions -the selection and ongoing assessment of 

portfolio investments - to an inappropriate level of shareholder 

oversight and micro-management. 

As the Staff has recognized in numerous Rule 14a-8 no action letter responses, "the 

ordinary business orrations of an investment company include buying and selling 

portfolio securities," Omitting tbc Proposal thus fits squarely within the purpose of the 

exclusion for "management functions:· 

The proposal seeks to affect how and when CREF purchases and sells portfolio securities. 

These matters are fundamental to the day~to-day management ofCREF. The Proposal thus 

amounts to the micro-management of essential business functions by shareholders, which is 

exactly what the ordinary business or "management functions .. exclusion under Rule l4a-8 

is designed to prevent.' The argument for excluding the Proposal is particularly strong in 

this case, since the Proposal names three specific issuers- Caterpillar. Veolia and Elbit. 

The Staff has previously granted simtlar no-action assurance to CREF in connection with a 

proposal relating to investment in a specific portfolio company under the ordinary business 

Atnendme»J> to Rut~ on SbarchG!d~tt Pmposill~>. Exclllinge Att Rcl1.$e No. 34-40018, fed. Sec L Rep. (CCHl, 

S6,0l8\May2L 1998). 

Collt.!gc Reliremlmr Equititffi Fund .. SEC Nu.Atuon Lcu.:r (pub. ;~v.UI May 3. 2004) r·:zoo4 CRRF Lcner").; M:e also, 
operations exclusion.3 The Staff has also allowed for exclusion when a group of specific 

companies is at issue.9 

The Proposal requests that CREF engage with specific portfolio companies on a specific 

issue and that CREF consider divesting from comp~nies that do not "cooperate" within a 

time frame set forth in the Proposal. Thus, not only does it seek to interfere with CREF' s 

buying and selling of portfolio securities, the Proposal seeks to micro-manage TIAA· 

CREF's ongoing engagement with portfolio companies. which i.s an integral part of 

CREF•s investment activities. TIAA-CREF communicates directly (using ••quiet 

diplomacy") with hundreds of companies each year on mat:tets of corporate governance and 

social responsibility, and has established policies and proeesses that guide the selection of 

both portfoUo companies and engagement objectives. m The Proposal seeks to micromanage this process by defining the subject matter and goals of company discussions; id~tifying the companies with which to engage, and setting a deadline beyond which 

CREF should consider divestment. As a group. shareholders lack sufficient information 

about the companies or issues to make these decisions on CREF's behalf, and allowing: this 

resolution to proceed could subject these specific business judgments to decision-making 

by referendum in the future. Further. this resolution seeks to force TIAA-CREP to publicly 

confront certain portfolio companies. which 1!ontradicts TIAA-CREf's stated and welltested policy of quiet diplomacy .11 

Importantly, our choice of quier diplomacy policy is related to our core investment 

function. Forcing us to change or disrupt our quiet diplomacy policy could, among other 

adverse consequences, make it more difficult tor our portfolio managers to have productive 

ongoing communications with portfolio companies on financial and other fundamental 

investment matters and could jeopardize beneficial relationships with these companies. 

Because the Proposal deals with matters that are fundamental to CREF's ordinal)' business 

operations, the Proposal may be excluded from CREF;s proxy materials under Rule 14a8(i}(7). 

College Retirtnrent Equilll.lS Fund, SEC Nu-Actilll) lclte'r {pub avl!ll &-pt 7, 2000) (flmlllll! thl!l a pt~lll T!!f!\ll,.>stmg 

dive>lmel\l from a portfolio c~ny lhatalleg<.>dly created cnv•rllnmental ~Ills Wllfi e~<:lu<l~ble becliul!<: it related to 

l"REF's ordinary bllSlll\."SS operations) 

College Rct(lcmcnt Equities Flllld, SEC No-Actton Letter ipub. avaiL March 31. ZOOS) (~2005 t'RJ'J' Le\tC'f~J (lindm~ that cJ«:lnsio.n was all~e wltetl: the proposal related w dJVCMWilt of sbnrcs m a goup of is$Uers). 

'" See Tli\A·ClU:l' Policy Sllltell1ellt em Corpora«: GQvcmance 4 (6tb ed !{hereinafter Pl!IIC)' Suuemo:nlj, sl:ilinJlt. ''Our 

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1. The proposal does not raise significant •·social policy" issues that 

would justifY an exception from the ordinary business exclusion. 

We recognize the Commission's view that a shareholder proposal that relates to certain 

types of management functions may not be excludable under Rule 14a.-8(i)(7) if tht;t 

proposal ••would transcend the day-UH:Iay business matters and raise policy issues so 

significant that it would be appropriate for a shareholder vote."12 That is not the case here. 

·rue Proposal does not ''transcend day-to-day business matters~" It goes to the very core of 

the management function for CREF, which is investing participant assets in accordance 

with the investment objectives of the CREF accounts. 13 Moreover, the Proposal does not 

raise "policy issues'' that "are appropriate for a shareholder vote." On the contrary, the 

Proposal takes sides and asks CREF and its other participants to take sides - in a highly 

controversial geopolitical dispute of enormous complexity. This dispute is not the type of 

policy issue that should prevent exclusion. 14 

tn applying this aspecl of the ordinary business exclusion, the Statf often looks to the 

nature and level of public concern and debate on the issue. ts In this connection, it is 

instructive to compare the Proposal with the human rights situation in Sudan, where public 

attention and debate led to the passing of legislation by the Unitt:d States government, 16 

condemnation by the United Nations, 17 and widespread divestiture by a broad spectrum of 

university endowments, public pension funds and other entities. 18 By contrast, the United 

li Se~t Amendments m Rules on Shareholder Proposals, Exchange M:t Release No 34-40018. Fed, Sec L. R;;p, (CCH) 'I 

86.018{May 21. 199ill 

Not every "Significant social pohcy l!lsue'" lilkes management f'ul!dloi1S oul.of the ordir)ary business exduston .Ste. e.g .. 

General Electm Co'" SH: No.Action Letrer \PUb. avail Feb 3, 2005) (finding that a proposal relating m the relocati011 

or U.S, jobs to foreign CI)Wltries was excludable because 11 relat:W to ~management. of \he workforce." an ordinary 

bu.,iness matter_ even though it also addressed a significant SOCii!! policy issue). 

1' The Staff has m \he past pumitted the exclusion of sharehulder proposals dealing with the !SillllJi-Palcstinian COI1nict 

under Rille 14a-S(i){S). based in part on the vie"' that '1he pol~ey 1s~ue raised by the propoSAl, ISrl!t:l's treatment of 

Palestinian& is not significant. and in fact is not related to the Company's busine.~s. AT&T lru:, SEC No-Action letter 

(pub awut Jan 30. 1992); .we af.ro, Hewlett-Packard Co. {Reik). SEC No-Ac:tiun letter (pub, av•tl JAil 1, 2003). 

Mot!)l"Q!lilne. SEC No-Alllion Letter (pub. avail. Feb. 21. !995). In an earlier letter to AT&T, lh!l St~~tflmrl declined 

rellefunderRIIIc 14a-ll(i)l7)hased on the policy L'I!IUC See AT&T lne. St::C No.Action Lettet(pub. 3\'ail January 16, 

1991 }. Uowe\'Cr, the Slllffs 1992 res)10ll5e m AT&T. while llddn:s$mg a different exclusion .. effectiV<~Iy rcvernes tbil; 

position, and in any case the 1991 AT&. T lertcr addresses differem: fuc!l; and drcumsuuiCI!s 

'' See AT&T Inc

SEC No

At1iou L¢nor(pub

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2

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States has vetoed proposed resolutions in the United Nations Security Council that would 

have supported condemnation of the activities at the heart of the Proposal.~'' Accordingly. we urge the Staff not to conclude that the Proposal raises an issue of social 

policy so significant that a shareholder vote is appropriate. 

B. The Proposal may be excluded under Rule 14a-8(iX10) because the 

essential objectives of the Proposal have already been substantially 

implemented. 

Rule l4a-8(iXIO} permits omission ofa shareholder prop<>sal if"the company has already 

substantially implemented the proposal." Because TIAA-CREF has implemented a policy 

for identifying portfolio companies to engage on a broad range of matters, including human 

rights matters, and divesting from companies when judged appropriate, CREF has 

substantially implemented the essential objectives of the Proposal.10 

The Staff has stated that "a detcnnination that [a] [c]ompany has substantially implemented 

the proposal depends upon whether its particular policies, practices and procedures 

compare favorably with the guidelines oftl'IC proposal."21 Significantly, when applying the 

substantial implementation standard, a proposal need noi be ''fully cfTccted."71 Rather, the 

Staff will grant no-action assurance when a company has implemented the essential 

objective of a proposal, even in cases where the company's actions do not fully comply 

with the specific dictates of the proposal . .:t; 

In this case, the essential obj~tives of the Proposal are two-fold. First, the Proposal asks 

CREF to engage specific issuers in its portfolio and encourage them to cease practices by 

which they allegedly profit from their complicity in human rights abuses.14 Second, the 

'' See US •·eto.ts U.N. draft cundemning lsrwt/1 senlemenrs REI.Jl£1\S. february IS. 2011. awilable a1 

httpJMww rel"eB.L'Omillrttdr/2011/02!18/us-palcstlnians· isr<~el·ur.-vull.~idVSTRE71 H6\ll72011 0:!18. 

By way of background TlAA-C'ItEF. organizatuJn-wide. has thn:-: strategies regarding sociaUy responsit·le investing.. 

depending on the investfn;g ponfollo mvolVIld: (I} th~ CREF Soc, a! Choice AcCO\IIlt implemer.ts S1lclal screening tllat 

gives special corn.ideratlon to companies' environmental. social and governance (wi3SG") records: (2) all public cqui~ portfolios seek 1{1 promo~~: tong~leml investment value b).· Cll<.'fCtSill!J shareholder righlll lo intlm;n<:e the ESCl policies of 

the companleli ttl which they invest (~eholder lll!vooacy)c and (3) the TlAA General Account and S;;x:ial Choice 

Account use fl1ttJMl co:nmullily and impact inYesting prQgmms. including microfillliiiC!! alld communil}' bank dep0$its 

wilb the goal of dclivcritl~ competitive returns and positiw social impact See 20JO Socially Responsible Investing 

Report 3 {hendnqfler lnvsing Report]. 

01 Se'e Texaco lm: .• SEC ~~tion l.etlel {pub.a¥aii. March 2$, 199') 

Zl SEC Release No 34-20091.48 FR 35082 (Augustl6, J9S.ll 
Proposal asks CREF tCJ consider divestment from those companies that continue to profit 

from these asserted human rights abuses after engagement, if the issuers do not cooperate 

within a stated time frame. 

These concerns relate to policies and practices that TIAA-CREF bas already put in place to 

engage with portfolio companies, including on human rights matters. The policies and 

practices are included in the TlAA·CREF Policy Statement on Corporate Governance (the 

"Policy Statement''), and are addressed in the TfAA-CR.EF 20 l 0 Socially Responsible 

Investing Report (the "Investing Report")}s In providing guidance to portfolio companies. 

as well as participants, about corporate governance and social responsibility practices that 

TIAA-CREF expects of porttolio companies, the Policy Statement provides: 

"companies should strive to respect {human] rights by developing policies and 

practices to avoid infringing on the rights of workers, communities and other 

stakeholders throughout their global operations .... Companies should pay 

heightened attention to human rights in regions characrerh:ed hy conflict or 

weak governance. . . . ''26 

In this connection, TIAA-CREF's Corporate Governance group has established pr<>cedures 

for monitoring and engaging portfolio companies. In selecting issues for engagement, the 

Corporate Governance group utilizes a detined process to systematically identify issues for 

engagement based upon, among other factors, their relevance to the market, potential 

impact oo performance, governance practices, and public interest.:n The engagement 

strategy reflects TIAA-CREF's dedication to good governance and social resp<msibility, 

and certainly encompasses the Proposal's request that CREF .. engage with corporations in 

its portfolio."' In fact .. in 2010, TIAA-CREF specifically engaged Caterpillar, one of the 

three companies identified in the Proposal. by voting in favor of a shareholder proposal 

requesting Caterpillar to institute a human rig.hts code of conduet.13 

Moreover. the Policy Statement addresses divestment, noting that: 

''filAA-CREF] may, as a last resort, consider dfvesting from companies we judge 

to be complicit in genocide and crimes against llumanity, the most serious human 

" Policy Statement at :15; Me al.w. Investing Report al 8. 

"· Policy Statement at26 ( emphasas added/ 
rights violations. after sustained efforts at dialogue have failed and divestment can 

be undertaken in a manner consistent with our fiduciary duties.''29 

This policy is not a mere formality. ln 2009. after an extended campaign to persuade 

certain companies to change their business strategies, CREF divested from several 

companies with ties to the government of Sudan in order to case suffering and end 

genocide in Darfur.)() 

In this case, the Policy Statement and TIAA,.CREF's practices thereunder address the 

Proposal's e.o;sential objectives of engaging portfol~ companies on human rights matters, 

and, considering, as a last resort in cases of the most serious human rights violations, 

divesting from eompanies that do not respond favorably. Accordingly, TIAA-CREF has 

already developed and implemented a comprehensive policy that "compares favorably with 

the guidelines of the [P]roposal" and that implements the essential objective of the 

Proposal. Therefore, the Proposal may be omitted from CREF's 2011 Proxy Materials 

pursuant to Rule 14a-8(i)(1 0). 

C. The Proposal may be excluded under Rule 14a-8(i)(3). 

An issuer may omit a shareholder proposal or supporting statement from its proxy materials 

under Rule 14a-8(i)(3) when the proposal or supporting statement is "contrary to any ofthe 

Commission's proxy rules. including Rule 14a-9. which prohibits materially false or 

misleading statements in proxy soliciting materials.'' The Staff has recognized that a 

proposal may be excluded under Rule 14a-8(i)(3) when it makes charges concerning 

improper. illegal, or immoral conduct or association without a tactual basis.31 

The Proposal includes factual assertions that are, at best. highly controversial and subject to 

widely differing views as to their accuracy and implications and, at worst, on their face 

untrue and eontrary to positions taken by the United States govemmene1 As discussed 

above, the Proposal makes these statements in connection with asking shareholders to take 

sides on a complex, controversial geopolitical dispute. CREF could not include the 

Proposal and these asserted facts without a response. However, CREF does not believe it 

would be possible to provide, in the 20 l I Proxy Materials, a. fair and balanced presentation 

on these facts and issues that would provide a basis for shareholders to reach an informed 

Polley Statementat27 (emphasis added). 

"' 'fiAA

ClUU' State!llcllt on Former Holdings m· Ce>mjllillms with nos to Sudnn (Jan. 4. 2010). (1\'i;l//ab/¢ tJI 
view on this controversy and the merits of the ProposaL'3 F.ven if it were possible to 

provide a balanced discussion of the facts asserted, CREf docs not believe that the 

Commission's proxy rules are intended to subject issuers to the severe burdens and expense 

of attempting to make their proxy materials a full and fair forum for debate on Middle East 

politics. 

In addition, the Proposal materially mischaracterizes CREF's beliefs and policies relating 

to activities of its portfolio companies in a mannet that is likely to be confusing and 

misleading to CREF shareholders. 

The Proposal states that: 

believes that avoiding complicity in human rights abuses and 

violations of law committed by others is both ethical and financially sound 

avoidance of unstable, insecure investments." 

However, although the Proponent cilcs the Investing Report for this assertion. this language 

is not in the Investing Report. Furthermore, in the context of the Proposal, the statement 

seems intended to mean that TIAA-CREF believes that ownership of a company is 

tantamount to "complicity" in the activities of that company. As a fiduciary charged with 

investing in the best if'.terests of all its shareholders. CREF does not and cannot take that 

view. While many companies in which CREF invests may report violations of law and/or 

engage in other activities with which m.anagement (or individuals within management) 

would not agree, this docs not mean that ownership of the portfolio companies represents 

"complicity." If that were the case, there would be few investment opporttmitics for CREF 

to select without being accused. of violating its own policy and being complicit in those 

violations and activities. This approach docs not represent CREF's views of investing, and 

it would be misleading for its 2011 Proxy Materials to include statements to that effect. 

II. CONCLUSION 

In view of the fact that (1) the Proposal deals with matters relating to CREF's ordinary 

business operations, {2) the Proposal is already substantially implemented, and (3} it 

contains false and misleading statements, it is our opinion that CREF. in accordance with 

Rules l4a-8(l)(7), l4a·8(i}(IO), and is permitted to exclude the Proposal from 

its 2011 Proxy Materials. Based on the foreg<>ing, CREF respectful!}' requests 

confinnatioll from the Staff that it will not reconun:end enforcement action to the 

Commission if CREF excludes the Proposal from its 20 ll Proxy Materials. 
!fthe Staff disagrees with out conclusion that the Proposal may be excluded &om CREf's 

20 t 1 Proxy Materials, we would appreciate an opportunity to discuss the matter with the 

Staff prior to issuil.fice of its formal response. As required by Rule 14a-8(j). six copies of 

this letter and its attachments are enclosed and a copy is fol"\varded concurrently to 

the Proponent. 

Yours truly, 

k/41£, 

t: 

"William J. Mostyn. HI 

Senior Vice President and Corporate Secretary 

TIAA Overseers. riAA and CREF 

Cc: Jef!Tey S. Puretz. Esq. Dechert LLP 

Ruth S. Epstein, Esq. Dechert LLP 
February 11, 2011 

WilliamJ. Mostyn 111 

Senior Vice President and Corpotate Secretary 

TlAA Overseers. TIAA and CR.EF 

One Beac:on Street 

Boston, MA 02108 

p 617-788-5969 

f 

CD'S 

I hereby fiJe Ute following proposal which request& that CR.EF engage with c::orpora.tions 

in its portfolio, sucb as Caterpillar, VeQlia, and Elbit, chatoperate on tbe West Bank and 

East Jemsalem wjth the goal of ending all practices by whith they profit fn>m the rsraeli 

ocx:upation, and if. by the annual meetiJI g of 20 12., tbere is no commitment to coopemte, 

CREP consider divesting as soon as marki!t conditions permit. 

This proposal is tiled for inclusion in the PfO'-Y state(Tie(tt jn accordance with Rule l4-a8 

of the General Rules and Regulations of the Securities and E.xc:bange Act of 1934. 

A number of CREF participants are flUng this proposal. Aaron Levitt is the lead filer; his 

contact information is wo.qjlevitt® gmail.c:om1 917-658-8157. 

1 have over $1.,000 worth of invutments io CRRF, which I ha'\le held continuously for 

more than one prior to the proposal filing date. l intend to continue to hold the 

required number of shares through the date of the company's annual meeting in 2011 and 

win be present in person or by pro:lly at that meeting. 

Slncerely, 

.Josh Connor 
B21ll/2011 0&!38 4158&15419 CDS 

PROPOSAL: 

WHEREAS, we and many other TlAA-CREF participants place respect for human rights 

and the rule of law at tbe top of our list of important social concerns;[l J and 

WHEREAS. !IAA-CREP believes that avoiding tOillplicity in human rights abuses and 

violation5 of Jaw committed by otbm is both ethical ~d tlnaocially sound avoidance of 

unStabletinsecure inve:.tmoJJts;f2l and 

WHEREAS. CREF nevertheless invests in companies. such as CaterpiUar. Veolia. and 

Etbit. tbat profit f:rom their complicity in human rishta abusu and violations of law 

committed to maintain and expand Israel's OCCU(JaUCift of the West Bank, including East 

Jerusalem;[3 J and 

WHEREAS,. CA TERPIUAR profits from tbe de$truction of Palestinian homes. fanns, 

and orchards by supplyil)g the bulldourt that are used for such demolition wotk; and 

WHEREAS. the number of Pllestinian homes demolisbed on, occupied territory was in 

2010 triple the number of such demolitions in 2009. despite condemnation by numerous 

lluman rights orgauiutiona;£41 and 

WHEREAS ELBIT profits from reaular attacks on the civilian Palestinian population, by 

providing military equipment, such as unmanned drones, despite condemnation of 

,Israel's use of unmanned drones by Amnesty lntemat!onal and Ruman Rights Watch;(5] 

ill)d 

WHEREAS BLBIT also profits by providing electronic surveHJance systems tttat lite 

built into Ute Separation Wall, despite the finding by the lntemational Court of Justice in 

2004 that Israel's construction. of more than 809& of the Separation Wall on Palestinian 

land. instead of Israeli land. wts an unlawful Jand expropriation under international law; 

[61and. 

WHEREAS VEOUA profits from the building and growth of Israeli settlements in the 

West Bank, by operatina a landfill that serves the settlements and contracting to opetate 

an iltepllight rail system connecting settlement~ wbh West Jerusalem, despite tht call 

by Ruman Rights Watch for aJJ butinesses prof'rting from settlements to mitigate any 

corporate involvemenr in abuses of human rights and international law caused by these 

settlements and, when necessary. end these business operations altogether .(7) 

THEREFORE BE IT RESOLVED that the participants request CREF to engage with 

corporations in its ponfoJlo, such as Caterpillar, Veolia. and Elbit. that operate on tbe 

West Sank and East Jetusalm1 with the goal of ending all practices by wbieh they profit 

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02111/2011 06:38 cos 

fll T.lAA-CREF'ZOl.O SOCIALLY RESPONSIBLE INVESTING REPORT, page 8. 

f21 T1AA·C.9£f20t0 SOCIALLY RESPONSIBLE INVFBTING REPORT. page 3. 

[3) See http:l/iewishvoicefot'peace.QrBftiaa .. cref · 

PAGE €14/€14 

[41 'Demolition of Palestinian homes in West Bank's Area C tripled in 2010'. Haaretz, 

January 26, 2011, IUtP;:I/www .hgretz.emnlprint·edition/newsfdelnolition"()f-pafestini:m· 

fSl Precisely Wrong: Gaza Civiliant lOlled by lmeli Drone-Launched Missiles. Human 

Rights 30, 2009. urges sUJpenaion of UK arms sales to Israel as 

evidel!Ce revealed t'hat Israel military drones use British.built engines. Amnesty 

Iotemationat,lan 9, 2009 

f6t lotemat\onal CO\irt of Justice. Legal Consequences of the Construction of a Wall in 

the Occupied Palestinian Territory. btf,J!;/fwww 

cij.org!dock.er!inde&.pbp?pr=7l&tode=mwp&p 1=3&p2=4&p3=6&case=l31 &k=Sa 

f71 Human Rights Wateh, Separate and Unequal, Dec 2010. 
April 15, 2013

William J. Kotapish, Esq.

Assistant Director

Division of Investment Management

Securities and Exchange Commission

100 F Street, NE

Washington, DC 20549

Subject: Corrected Response to CREF request to omit the Shareholder Proposal of Steve Tamari 

 and hundreds of co-filers from the proxy booklet and a vote at 2013 Annual Meeting

Dear Mr. Kotapish:

Proponents Steve Tamari and about 200 co-filers request that the SEC Staff reject the

request by CREF for a no-action decision. Proponents respectfully ask the Staff to consider the

following response to CREF’s request. 

A. The proposal falls under an exception to the ordinary business exclusion.

The proposal may not be excluded from the proxy because it falls under an exception to the

ordinary business exclusion for matters of “widespread public debate and increasing recognition

that the issue raises significant social and corporate policy issues.” 1

The eight examples cited in the proposal’s supporting statement illustrate the widespread public

debate and increasing recognition by authoritative United Nations, US government, foreign

government, and non-governmental bodies that the issue of Israel’s occupation of Palestine raises

significant social and corporate policy issues. The examples include (1) a decision by the

International Court of Justice; (2) a resolution adopted by the UN General Assembly; (3) US

official policy; (4) a call by Human Rights Watch; (5) a call by the UN Special Rapporteur on the

Situation of Human Rights in the occupied Palestinian territories; (6) a call on Congress by

leaders of 15 major US churches; (7) calls by the United Methodist Church, the Presbyterian

Church and the United Church of Canada; (8) decisions by South Africa, the UK, and Denmark,

and a request to the European Union by 20 NGOs (details of each are provided below). 

In addition to these eight examples, events and media articles described later in this letter further

illustrate the widespread public debate and increasing recognition that the issue of Israel’s

IBM, Inc. SEC unable to concur to no-action letter request, February 16, 2000: “We are unable to concur 1

in your view that IBM may exclude the proposal under rule 14a-8(i)(7). That provision permits the omission of a

proposal that deals with a matter relating to the ordinary business operations of a registrant. In view of the

widespread public debate concerning the conversion from traditional defined benefit pension plans to cash-balance

plans and the increasing recognition that this issue raises significant social and corporate policy issues, it is our

view that proposals relating to the conversion from traditional defined benefit pension plans to cash-balance plans

cannot be considered matters relating to a registrant's ordinary business operations. Accordingly, we do not believe

that IBM may omit the proposal from its proxy materials in reliance on rule 14a-8(i)(7).” (Emphasis added) 

Page 1 of 34
occupation of Palestine and the human rights violations committed in its conduct raise significant

social and corporate policy issues. 

B. The proposal’s supporting statement places investment in companies whose

operations support the Israeli occupation in the context of TIAA-CREF social

responsibility policy and provides examples of widespread public debate.

The supporting statement recognizes that TIAA-CREF has adopted “socially responsible”

policies and that its Social Choice accounts “invest based on environmental, social, and

governance (ESG) criteria, including a commitment to honor human rights.” It further recognizes

that TIAA-CREF has agreed to “incorporate ESG issues into investment analysis and decisionmaking processes.” 

The supporting statement then says, “Despite these policies, CREF nevertheless invests in

companies whose operations raise serious human rights concerns,” namely “companies providing

support for the Israeli occupation and segregated settlements.” Ten and a half paragraphs of the

supporting statement focus on this issue, including the eight examples illustrating widespread

official and public debate and recognition of the importance of the Israeli occupation issue. This

part of the supporting statement starts with an example of one company that takes blatant

discrimination against Palestinians in occupied Palestine to humiliating extreme: That company

dumps waste from illegal West Bank settlements on occupied Palestinian land, and through

subsidiaries, operates segregated bus services for Israeli settlers in the occupied West Bank

Palestinian territories and a light rail connecting illegal West Bank settlements to Jerusalem. 

C. The proposal’s resolved clause places “companies whose business supports Israel’s

occupation” in the context of egregious human rights violators and calls for an end

to investments in such companies.

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.

Analysis

D. CREF offers no facts to support its opinion.

In its letter to the SEC, dated March 22, 2013, CREF asserts its opinion as fact that “this issue is

not the type of widely-accepted, significant social policy issue that would transcend the ordinary

business exclusion.” CREF offers no facts to support its opinion that the issue is not “widely

accepted” or is not the right “type of widely-accepted issue.” 

E. CREF misstates the SEC criteria in its 2013 letter but CREF got it right in 2004.

CREF does not offer any citation showing “type of widely-accepted” as a criterion used by the

SEC either in addition to or instead of “widespread public debate and increasing recognition that

the issue raises significant social and corporate policy issues.” 

Page 2 of 34
In its March 22, 2013 letter, CREF entirely omits mentioning the SEC criterion as to whether this

is an issue of “widespread public debate.” Nor does CREF address whether there is “increasing

recognition that the issue raises significant social and corporate policy issues.” These omissions

are not because CREF is unaware of these SEC criteria. 

In its February 24, 2004 letter to the SEC (the “2004 letter”), cited by CREF in its March 22, 2

2013 letter, CREF properly described the actual SEC criteria. In the 2004 letter CREF said:

B. The Proposal does not raise significant social policy issues.

The Staff has indicated that a shareholder proposal that would normally be

excludable as dealing with a matter relating to a company's ordinary business

operations may not be excludable if it raises significant social policy issues. The 9

Staff has determined that shareholder proposals involve significant social policies

if they involve issues that engender widespread debate,[10] media attention[11]

and legislative and regulatory initiatives.[12] (the footnotes in brackets are in

CREF’s letter.) 3

Regarding “widespread debate,” in footnote 10 of its 2004 letter to the SEC, CREF cited

“Division of Corporation Finance: Staff Legal Bulletin No. 14A, Shareholder Proposals.” 4

Staff Legal Bulletin No. 14A states: 

The Commission has previously taken the position that proposals relating to

ordinary business matters "but focusing on sufficiently significant social policy

issues . . . generally would not be considered to be excludable, because the

proposals would transcend the day-to-day business matters and raise policy issues

so significant that it would be appropriate for a shareholder vote." The Division 6

has noted many times that the presence of widespread public debate regarding

an issue is among the factors to be considered in determining whether proposals

concerning that issue "transcend the day-to-day business matters." 7

In the 2004 letter, CREF continued with a fact and an argument: 

College Retirement Equities Fund, SEC No-Action Letter (pub. avail. May 3, 2004), 2

http://www.sec.gov/divisions/investment/noaction/crfuller050304.pdf

Similarly, Fidelity Aberdeen Street Trust (2008) admitted in its letter to the SEC that (unsuccessfully) 3

requested a no-action letter: “We recognize that the Staff of the Commission has indicated that a shareholder

proposal that would normally be excludable under Rule 14a-8(i)(7) may not be excludable if it raises significant

social policy issues. Shareholder proposals involve significant social policies if they involve issues mat [typo in 9

original; should be “that”] engender widespread debate, media attention and legislative and regulatory

initiatives. " 10

Division of Corporation Finance: Staff Legal Bulletin No. 14A, Shareholder Proposals, 4

Action: Publication of CF Staff Legal Bulletin, Date: July 12, 2002 

http://www.sec.gov/interps/legal/cfslb14a.htm

Page 3 of 34
Here, the Proposal relates to the divestiture of a single portfolio investment.

Therefore, although CREF appreciates the gravity of the allegations contained in

the supporting statement, it believes that the Proposal itself is related to an

ordinary business topic.

In its March 22, 2013 letter to the SEC, CREF implicitly recognized what its burden is by citing

its own 2004 letter (see footnote 8 of the March 22, 2013 letter). But in this March 22, 2013 letter

to the SEC, CREF omitted explicit mention of the widespread public debate and media attention

criteria CREF had already recognized in its May 3, 2004 letter to the SEC. In addition to not

explicitly mentioning these criteria, TIAA-CREF also provided no fact and no argument

regarding these criteria. 5

Having implicitly admitted to the widespread public debate and media attention SEC criteria

through its citation of its 2004 letter, but having omitted making explicit mention of these criteria

in its March 22, 2013 letter, and having omitted fact and argument regarding these criteria in its

March 22, 2013 letter to the SEC, CREF could not have met its burden. 

Interestingly CREF took upon itself the power to revise the SEC criteria. CREF asserts in its

March 22, 2013 letter that “this issue is not the type of widely-accepted, significant social

policy issue that would transcend the ordinary business exclusion.” (Emphasis added.) This

CREF version of the criteria is quite different from the actual SEC criteria: “the presence of

widespread public debate and increasing recognition” regarding an issue. The fact that CREF

took it upon itself to revise the SEC criteria and then argue against its own self-serving strawman version serves as an admission by CREF that it has no fact or argument sufficient to meet

the actual SEC criteria. 

The proposal’s supporting statement recites facts demonstrating widespread public debate and

increasing recognition that the issue raises significant social and corporate policy issues. These

facts, plus the many additional facts presented in this letter, show the presence of widespread

public debate and increasing recognition that the issue raises significant social and corporate

policy issues. Proponents respectfully ask the SEC staff to consider that the facts provide strong

evidence that the proposal concerns an issue that "transcends the day-to-day business matters," is

not a matter of ordinary business, and is appropriate for a shareholder vote. 

F. Proposal’s supporting statement illustrates widespread public debate and increasing

recognition that the issue raises significant social and corporate policy issues.

This from the proposal’s supporting statement (with footnotes and citations added): 

Investments in companies providing support for the Israeli occupation and segregated

settlements in the West Bank, including East Jerusalem, represent a significant policy issue:

Because the present resolution relates to a policy matter, not a single portfolio investment, the fact and 5

argument CREF used regarding the 2004 proposal are inapplicable with regard to the present resolution.

Page 4 of 34
C The International Court of Justice concluded in 2004 that “the Israeli settlements in the

Occupied Palestinian Territory (including East Jerusalem) have been established in

breach of international law”;6

C Israel continues to maintain and even accelerate settlement of the West Bank and East

Jerusalem, even after the UN General Assembly in December 2012 recognized Palestine 7

as a non-member state, with only eight countries voting “nay”;8

C The U.S. officially opposes continued Israeli settlement activity;9

International Court of Justice. Advisory opinion: Legal Consequences of the Construction of a Wall in the 6

Occupied Palestinian Territory, July 9, 2004 

http://www.icj-cij.org/docket/index.php?pr=71&code=mwp&p1=3&p2=4&p3=6

“Israel 'to build 3,000 new settler homes in wake of Palestinian UN bid',” The Telegraph, November 30, 7

2012 http://www.telegraph.co.uk/news/worldnews/middleeast/israel/9714550/Israel-to-build-3000-new-settlerhomes-in-wake-of-Palestinian-UN-bid.html "Despite the commitments he gave to (US) President (Barack) Obama,

PM Netanyahu gave the order to advance construction in the E1 area between Maaleh Adumim and Jerusalem which

will cut off the northern part of the West Bank from the south," . . . “The Palestinians bitterly oppose the project as it

effectively cuts the occupied West Bank in two, making the creation of a viable Palestinian state highly

problematic.”

Resolution adopted by the General Assembly 67/19. Status of Palestine in the United Nations, December 8

4, 2012 http://www.un.org/ga/search/view_doc.asp?symbol=A/RES/67/19 and “UN general assembly makes

resounding vote in favour of Palestinian statehood,” Ewen MacAskill and Chris McGreal, The Guardian, November

29, 2012 http://www.guardian.co.uk/world/2012/nov/29/united-nations-vote-palestine-state

U.S. Policy on Israeli Settlements (Taken Question), Office of the Spokesperson 9

Washington, DC, Question Taken at the June 16, 2011 Daily Press Briefing, June 16, 2011

Q: What is the current U. S. policy on Israeli settlements?

A: The position of the United States on Israeli settlements has not changed and will not change. Like every American

administration for decades, we do not accept the legitimacy of continued settlement activity. President Obama's

recent speech offered our views on the way forward.

http://www.state.gov/r/pa/prs/ps/2011/06/166371.htm

“Our position on this issue remains unchanged. The United States has a clear policy – we do not accept the

legitimacy of continued Israeli settlement activity. We oppose any effort to legalize settlement outposts, which is

unhelpful to our peace efforts and would contradict Israeli commitments and obligations.” US Department of State.

Israel/Palestinians: U.S. Position on Settlements, October 12, 2011

http://www.state.gov/r/pa/prs/ps/2011/10/175339.htm). 

President Obama speaking at the joint press conference with Palestine President Abbas on March 21, 2013: “Now,

one of the challenges I know has been continued settlement activity in the West Bank area. And I’ve been clear with

Prime Minister Netanyahu and other Israeli leadership that it has been the United States’ policy, not just for my

administration but for all proceeding administrations, that we do not consider continued settlement activity to be

constructive, to be appropriate, to be something that can advance the cause of peace. So I don’t think there’s any

confusion in terms of what our position is.” http://www.whitehouse.gov/the-press-office/2013/03/21/remarkspresident-obama-and-president-abbas-palestinian-authority-jointPage 5 of 34
C Human Rights Watch calls on companies that "contribute to and/or benefit from

violations of Palestinian residents’ human rights" to either end their involvement in such

violations or end operations altogether, "where business activity directly contributes to

serious violations of international law, including prohibitions against discrimination”;10

C The U.N. Special Rapporteur on the situation of human rights in the occupied Palestinian

territories has recommended boycotting such companies, including Veolia Environment,

and has warned that these companies may expect damage to their public image, impact on

shareholder decisions and share price, and potential criminal or civil liability for breaches

of international human rights and humanitarian law;11

C Leaders of 15 major churches in the U.S. in October 2012 called on Congress to suspend

U.S. military aid to Israel if investigation discloses that Israel is using such aid in

violation of U.S. law;12

C The United Methodist Church, the Presbyterian Church (USA), and the United Church 13 14

of Canada have called for boycott of Israeli settlement goods; 15

C South Africa, the U.K., and Denmark advise that settlement goods not be labeled as

'Made in Israel,’ and over 20 NGOs are asking the European Union to take similar steps;16

HRW: Israel/West Bank: Separate and Unequal, 2010 10 http://www.hrw.org/node/95059/section/3

Situation of human rights in the Palestinian territories occupied since 1967, UN A/67/379, September 19, 11

2012, pages 10 , 11, and 14-15.

http://unispal.un.org/unispal.nsf/5ba47a5c6cef541b802563e000493b8c/4b2de5243ebce35685257aa200487927?Ope

nDocument

Religious leaders ask Congress to condition Israel military aid on human rights compliance. PC(USA), 12

October 5, 2012 http://www.pcusa.org/news/2012/10/5/religious-leaders-ask-congress-condition-israel-mi/

The Position of the United Methodist Church regarding the Israeli occupation of Palestinian territory, the 13

Israeli settlements, and boycott of settlements products.

https://www.kairosresponse.org/Oppos_To_Settlements_Resol.html

 “Boycott added to Presbyterian tools for Middle East peace,” PC(USA), July 7, 2012: 14

http://www.pcusa.org/news/2012/7/7/boycott-added-presbyterian-tools-middle-east-peace/

“The Working Group on Israel/Palestine Policy” – (Unofficial text of minutes approved by General 15

Council 41 August 17th. 2012): http://www.gc41.ca/sites/default/files/final_unofficial_israel_palestine.pdf. See also:

http://www.gc41.ca/israel-and-palestine-policy-report

 “Trading away Peace: How Europe helps sustain illegal Israeli settlements,” October 30, 2012: 16

http://www.fidh.org/IMG/pdf/trading.pdf

Page 6 of 34
G. Recent developments further show widespread public debate and increasing

recognition that the issue raises significant social and corporate policy issues.

C On April 22, 2012, the CBS television show, 60 Minutes, aired “Christians in the Holy

Land,” with Bob Simon exploring why leading Palestinian Christians had endorsed the

call by Palestinian civil society for global engagement in “divestment and in an economic

and commercial boycott of everything produced by the occupation.”17

The other side of the debate became a story in its own right. As reported on April 24,

2012, “'60 Minutes' Israel Story: Benjamin Netanyahu Reportedly Briefed On Envoy's

Attempt To Kill CBS Story,” the Israeli ambassador tried hard to stop the 60 Minutes

segment from being broadcast. 18

Two days later MJ Rosenberg reporting on the Huffington Post wrote, “The 60 Minutes

report caused the Israeli government to go ballistic even before it aired.”19

C In December 2012 the UN voted to admit Palestine as a non-member state. 

C In his March 2013 visit to Israel and Palestine, President Obama spoke against the

occupation and said "Palestinians have a right to be a free people in their own land." 

C In October 2012 came the call on Congress by leaders of 15 major churches in the U.S. to

suspend U.S. military aid to Israel if investigation discloses that Israel is using such aid in

violation of U.S law. 

C In October 2012 came the call by the U.N. Special Rapporteur on the situation of human

rights in the occupied Palestinian territories to boycott companies doing business in

Israeli settlements in the West Bank and East Jerusalem, including Veolia Environment,

and his warning that these companies may expect damage to their public image, impact

on shareholder decisions and share price, and potential criminal or civil liability for

breaches of international human rights and humanitarian law. 

C Billboards and bus ads protesting US aid to Israel have sprung up in different American

cities, eliciting controversy and showcasing local support (Chicago, New York City, San

Francisco, Portland, Westchester County).20

The 60 Minutes segment is at: 17 http://www.cbsnews.com/8301-18560_162-57417408/holy-land/

'60 Minutes' Israel Story: Benjamin Netanyahu Reportedly Briefed On Envoy's Attempt To Kill CBS 18

Story,” by Rebecca Shapiro, Huffington Post, April 24, 2012 

http://www.huffingtonpost.com/2012/04/24/60-minutes-israel-christians-netanyahu-kill-story_n_1449595.html

“Suppression: The Israeli Government & 60 Minutes,” by MJ Rosenberg, The Huffington Post, April 26, 19

2012 http://www.huffingtonpost.com/mj-rosenberg/suppression-the-israeli-g_b_1457189.html

 “Pros, cons of U.S. aid to Israel argued in New York subway posters,” CNN, Spetember 16 2011 20

http://www.cnn.com/2011/US/09/16/new.york.dueling.posters/index.html

Page 7 of 34
C The nomination of Senator Chuck Hagel to Secretary of Defense in 2012 was widely seen

and reported in the media as a proxy battle between President Obama and the Israel

lobby. An opinion piece in the New York Times, “Don’t Let Pro-Israel Extremists Sink

Chuck Hagel,” shows how the public debate about the Israeli settlement issue is so 21

widespread that it moved into the center of the US Senate confirmation process: “Ten

years ago, mainstream pro-Israel groups carefully avoided the issue of West Bank

settlements; today, politicians who argue that settlement expansion is an obstacle to peace

— a longstanding American position — risk being tarred with the anti-Israel brush. Even

though support for settlements reflects the perspective of a small minority of American

Jews, it increasingly appears to be the policy stance of major pro-Israel groups.” 

A number of highly important figures came out for or against Senator Hagel.22

The Senate confirmation hearing became the subject of strong satirical criticism by the

popular NBC TV show, “Saturday Night Live.”23

Andrew Sullivan, former editor of The New Republic, described this “Saturday Night

Live”segment as a “cultural breakthrough,” stating that “the absurdly overblown power of

the Greater Israel lobby is now seeping into the popular culture.”

C In February 2013 a widely reported public debate ensued when Palestinian human rights

activist and divestment advocate Omar Barghouti and Philosophy Professor Judith Butler

“Metro-North Faces Israel-Palestine Ad Conflict,” Daily News, May 26, 2012, by James Arkin, “The Israel-Palestine

conflict remains in full swing -- on Metro-North train platforms.” 

http://www.nydailynews.com/blogs/dailypolitics/2012/07/metro-north-faces-israel-palestine-ad-conflict

“New TriMet ads highlight Palestine-Israel conflict,” Fox 12 Oregon, September 27, 2012

http://www.kptv.com/story/19658539/trimet-ads-to-highlight-palestine-israel-conflict

“Anti-Israel ads at Westchester train stations stir controversy,” News 12, March 27, 2013

http://westchester.news12.com/news/anti-israel-ads-at-westchester-train-stations-stir-controversy1.4919676?firstfree=yes

“Don’t Let Pro-Israel Extremists Sink Chuck Hagel, The New York Times, December 26, 2012, by James 21

Besser http://www.nytimes.com/2012/12/27/opinion/dont-let-pro-israel-extremists-sink-chuck-hagel.html?_r=0

“The Israel Lobby and Hagel,” by Joe Klein, Time Magazine, January 8, 2013 22

http://swampland.time.com/2013/01/08/the-israel-lobby-and-hagel/

“Chuck Hagel nomination shows AIPAC's limits,” by Phillip Klein, The Examiner, January 9, 2013

http://washingtonexaminer.com/philip-klein-chuck-hagel-nomination-shows-aipacs-limits/article/2518048

“The Real Reason Republicans Hate Hagel,” by Fred Kaplan, Slate, January 6, 2013

http://www.slate.com/articles/news_and_politics/war_stories/2013/01/chuck_hagel_for_secretary_of_defense_republ

icans_wants_to_block_him_from.html

“How Obama Beat The Lobby,” by MJ Rosenberg, March 6, 2013

http://mjayrosenberg.com/2013/03/06/how-obama-beat-the-lobby/

The Saturday Night Live segment did not air live, but was posted by NBC online: 23

“‘Saturday Night Live’ on Chuck Hagel’s confirmation hearing (VIDEO)”

http://www.washingtonpost.com/blogs/the-fix/wp/2013/02/11/saturday-night-live-on-chuck-hagels-confirmation-hear

ing-video/

Page 8 of 34
were slated to speak about the boycott, divestment, and sanctions (BDS) movement at

Brooklyn College, sponsored by the Political Science Department. The Mayor of New

York, Michael Bloomberg, spoke out in support of the event proceeding as planned and

against interference by the City Council: “If you want to go to a university where the

government decides what kind of subjects are fit for discussion, I suggest you apply to a

school in North Korea.” The New York Times dedicated an editorial in defense of the 24

talks. As the Times reported, the lectures took place on February 7, 2013 with protests 25 26

pro- and con- outside.

C Two films criticizing the Israeli occupation were among the finalists in the Oscars in

February 2013.27

• In June 2012, MSCI removed Caterpillar from its ESG indexes, in part because of the

long running controversy regarding the use of CAT bulldozers by the Israeli Defense

Forces in the Occupied Palestinian Territories. Following MSCI’s move, TIAA-CREF

divested over 72 million dollars worth of CAT stock from its Social Choice accounts.28

“Mayor Backs College’s Plan to Welcome Critics of Israel,” by Kate Taylor, The New York Times,

24

February 6, 2013

http://www.nytimes.com/2013/02/07/nyregion/bloomberg-defends-brooklyn-colleges-right-to-bds-talk.html?_r=0

“New York Dems Shouldn't Make Political Hay of Brooklyn College's Panel on BDS,” The Nation, February 5,

2013: http://www.thenation.com/blog/172665/new-york-dems-shouldnt-make-political-hay-brooklyn-colleges-panelbds#

“4 House Members Slam College's Anti-Israel Event,” Mother Jones, February 2, 2013

http://www.motherjones.com/mojo/2013/02/brooklyn-college-bds-omar-barghouti-judith-butler-israel-palestinian

“Appearance by Group Advocating Boycott of Israel Roils Brooklyn College,” The New York Times, January 31,

2013 http://www.nytimes.com/2013/02/01/nyregion/appearance-by-bds-at-brooklyn-college-spurs-protest.html

“Litmus Tests,” The New York Times, February 4, 2013 25

http://www.nytimes.com/2013/02/05/opinion/litmus-tests-for-israel.html?_r=0

“Pro-Palestine Speakers at Brooklyn College Attract Protests Outside,” by 26

Vivian Yee, The New York Times, February 7, 2013 http://www.nytimes.com/2013/02/08/nyregion/at-brooklyncollege-pro-palestine-speakers-attract-protests-outside.html

“Israeli Oscar contenders force citizens to confront uncomfortable questions: Two Israeli documentary 27

films nominated for Oscars, 'The Gatekeepers' and '5 Broken Cameras,' raise difficult questions about the Israeli

occupation of the Palestinian territories,” by Chelsea Chesley, The Christian Science Monitor, February 23, 2013

http://www.csmonitor.com/World/Middle-East/2013/0223/Israeli-Oscar-contenders-force-citizens-to-confront-unco

mfortable-questions

 “Israel cited in Caterpillar’s delisting from influential investment index,” JTA, June 22, 2012 28

http://www.jta.org/news/article/2012/06/22/3098921/israel-cited-as-one-of-several-factors-in-caterpillars-delisting

“Decision to oust Caterpillar from influential ethical investing index linked to Israeli use of tractors,” Haaretz, June,

23, 2012: http://www.haaretz.com/business/decision-to-oust-caterpillar-from-influential-ethical-investing-indexlinked-to-israeli-use-of-tractors-1.440509

“Caterpillar pulled from social indexes,” Fox News, June 27, 2012

http://www.foxnews.com/world/2012/06/27/caterpillar-pulled-from-social-indexes/

“Caterpillar cut from investment lists; Israeli role cited”, LA Times, June 27, 2012

http://latimesblogs.latimes.com/world_now/2012/06/caterpillar-israel-palestine-investment-controversy.html

Page 9 of 34
• Following questions by Quakers concerned about investments linked to the Israeli

occupation, in October 2012 Friends Fiduciary, an investment firm serving over 300

Quaker institutions in the United States, divested from Caterpillar, Hewlett-Packard, and

Veolia.29

• The United Methodist Church considered at its quadrennial General Conference in May

2012 divesting from corporations whose business and products support the Israeli

occupation of Palestinian land. Although that resolution did not pass, the church voted 30

to boycott Israeli settlement goods.31

• The Presbyterian Church (USA)’s Mission Responsibility Through Investment

recommended in 2011 divestment from Caterpillar, Hewlett-Packard, and Motorola

Solutions, after what it termed “seven years of apparently futile corporate

engagement” over “business practices in Israel/Palestine.” At the church’s biennial 32

General Assembly in July 2012, the issue of divestment came to the fore from the

committee as well as from a number of Presbyteries across the country. The General

Assembly’s deliberations were thoroughly covered in the press, locally and

nationally. The Presbyterian Church (USA) had been discussing this issue at every

bi-annual General Assembly since 2004 (in 2004, 2006, 2008, 2010, and 2012). In

2012, the divestment overture won in committee by a 3 to 1 ratio, and was 33

subsequently defeated at the conference floor by the slimmest of margins (333

against, 331 for, and 2 abstentions), amply demonstrating that this issue divided the

church delegates almost evenly. In the end, an overture to boycott settlement 34

goods passed with 71% of the vote, the wide margin showcasing the growing 

 “US Quakers sell shares over Israel policy concerns,” Associated Press, October 3, 2012 29

http://www.boston.com/business/news/2012/10/03/quakers-sell-shares-over-israel-policyconcerns/GJReufxJYh0a5QE2YiIZVO/story.html

 “Methodists Vote Against Ending Investments Tied to Israel”, The New York Times, May 2, 2012: 30

http://www.nytimes.com/2012/05/03/us/methodists-vote-against-ending-investments-tied-to-israel.html

Summary of resolution text: http://calms2012.umc.org/Text.aspx?mode=Petition&Number=1072

 “The Position of the United Methodist Church regarding the Israeli occupation of Palestinian territory, 31

the Israeli settlements, and boycott of settlements products,”

https://www.kairosresponse.org/Oppos_To_Settlements_Resol.html

“MRTI recommends PC(USA) divestment of three companies,” September 12, 2011: 32

http://www.pcusa.org/news/2011/9/12/mrti-recommends-pcusa-divestment-caterpillar/

“Assembly committee recommends divestment,” July 4, 2012: 33

http://www.pcusa.org/news/2012/7/4/assembly-committee-recommends-divestment/

“In Close Vote, Presbyterian Church Rejects Divesting in Firms That Aid Israeli Occupation,” The New 34

York Times, July 5, 2012: http://www.nytimes.com/2012/07/06/us/presbyterian-church-wont-divest-in-firms-aidingoccupation.html

Page 10 of 34
concern about corporate responsibility regarding the illegal Israeli settlement

enterprise in the West Bank and East Jerusalem.35

• In March 2013, the Mennonite Central Committee voted to divest from companies

that benefit from products or services used to perpetrate acts of violence against

Palestinians, Israelis and other groups.36

• The Brown Advisory Committee on Corporate Responsibility in Investment Policies

(ACCRIP)—a committee comprised of Brown University faculty, staff, alumni, and

students that considers issues of ethical and moral responsibility in the investment

policies of Brown University—issued its recommendations to the University at the end of

2012, including the committee’s concerns that “Brown may be invested in firms whose

products and services are being used to commit human rights violations in Palestine,” and

recommended that “the University should consider the implications of its investment in

companies perpetrating human rights abuses, and whether or not divestment is an option

in dealing with the issue.” 37

• In June 2012, “the undergraduate student government at Arizona State University

unanimously passed a bill demanding that ASU divest from and blacklist companies that

continue to provide the Israeli Defense Force with weapons and militarized equipment or

are complicit with the genocidal regime in Darfur.” 38

• In March 2012, students from M.E.Ch.A, the largest Latino student group in the

US, voted overwhelmingly to endorse boycott, divestment, and sanctions (BDS) related to

the military occupation of Palestine.39

 “Boycott added to Presbyterian tools for Middle East peace,” PC(USA), July 7, 2012 35

http://www.pcusa.org/news/2012/7/7/boycott-added-presbyterian-tools-middle-east-peace/

MCC U.S. board acts for peace through its investments. MCC, March 26 2013 36

http://www.mcc.org/stories/news/mcc-us-board-acts-peace-through-its-investments

37 http://brown.edu/about/administration/advisory-committee-corporate-responsibility-investmentpolicies/sites/brown.edu.about.administration.advisory-committee-corporate-responsibility-investmentpolicies/files/uploads/ACCRIP%20Letter%20102312.pdf

Arizona State University student government votes to divest from Israel. Mondoweiss, June 5, 2012 38

http://mondoweiss.net/2012/06/arizona-state-university-student-government-votes-to-divest-from-israel.html

National M.E.Ch.A Endorses BDS!, March 30, 2012 39 http://www.nationalmecha.org/

Page 11 of 34
• Divestment resolutions had passed earlier at a number of student bodies: Wayne State

University (2003), the University of Michigan at Dearborn (2005, 2006, and 2010). In 40 41

2009, after more than 800 students, professors, and alumni at Hampshire College signed a

petition calling for divestment related to the Israeli occupation, the College divested 42

from a large number of companies. Under pressure, the College denied that their decision

pertained to “a specific region or country,” but acknowledged that the review of the

college’s investment portfolio was “in response to a petition from Students for Justice in

Palestine.” The large public controversy generated by Hampshire College’s decision 43

illustrates once more that divestment connected to Israel/Palestine is an issue that

generates large attention, interest, discussion, and debate.

• An even larger level of interest was produced by the divestment hearings at the UC

Berkeley student senate in 2010. These marathon sessions sometimes lasted nine hours,

and at least one of them was attended by the Israeli Consul General, attesting to the

important social policy being discussed by a small number of student senators. In fact, a 44

Berkeley media outlet reported that “The question of whether the University of California

at Berkeley should divest funds from companies that do business in Israel has gone viral

and international.” Nobel Peace Prize Awardee Archbishop Desmond Tutu weighed in

with a letter of support. The resolution passed the Student Senate and was later vetoed 45

by its president. Even though a subsequent vote still placed the majority of student

senators in favor of divestment, the student senate failed by a single vote to override the

veto.

• Divestment has continued to be an important policy issue in the UC system. The

University of California Student Association (ASUC)--a body which represents hundreds

of thousands of students across the University of California--stated in 2012 that it

WSU Student Council Votes for Divestiture. Arab American News, April 26, 2003 40

http://4.bp.blogspot.com/_EbIZBUj7TAg/S9GHXfkzyeI/AAAAAAAAAIg/38lsFh4ofi0/s1600/WSU.bmp

 “Dearborn student government pushes 'U' to divest funds from Israel,” The Michigan Daily, March 11, 41

2010 http://www.michigandaily.com/content/dearborn-resolution-calls-investigation-university-endowmentinvestments

 “Hampshire College cuts ties with fund invested in Israel,” Boston.com, February 12, 2009 42

http://www.boston.com/news/local/breaking_news/2009/02/hamphire_colleg.html

“War of Words on Investments in Israel,” Inside Higher Ed, February 13, 2009: 43

http://www.insidehighered.com/news/2009/02/13/hampshire

No Final Decision on UC Berkeley Israel Divestment Bill after Marathon Meeting, April 15, 2010: 44

http://www.berkeleydailyplanet.com/issue/2010-04-15/article/35024?headline=No-Final-Decision-on-UC-BerkeleyIsrael-Divestment-Bill-after-Marathon-Meeting--By-Riya-BhattacharjeeA surgical strike on Israel's wallet could end the occupation. Haaretz, April 30, 2010: http://www.haaretz.com/printedition/opinion/a-surgical-strike-on-israel-s-wallet-could-end-the-occupation-1.287479

Nobel Peace Prize winner weighs in on UC/Israel divestment question. Berkeleyside, April 12, 2010: 45

http://www.berkeleyside.com/2010/04/12/nobel-peace-prize-winner-weighs-in-on-ucisrael-divestment-question/

Page 12 of 34
“recognizes the legitimacy of boycotts and divestment as important social movement

tools, and encourages all institutions of higher learning to cleanse their investment

portfolios of unethical investments in companies implicated in or profiting from

violations of international human rights law, without making special exemptions for any

one country,” In November 2012, the student government at the University of 46

California, Irvine resolved unanimously (16-0) to divest from Israel’s occupation. A47

similar vote passed at UC San Diego in March 2013. A parallel resolution first passed at 48

UC Riverside in April 2013 and was subsequently reversed. 49

• As recognized in the first court decision to address the Boycott, Divestment, and

Sanctions movement in the U.S., “The evidence clearly shows that the Israel boycott and

divestment movement is a national movement. It is clearly more than a boycott. It is a

divestment movement, as well.”50

• Norway's Finance Ministry excluded Elbit from the country's vast global pension-fund

portfolio (2009). Sweden’s largest pension funds divested from Elbit the following year, 51

following a recommendation by its Ethical Council. The AP Swedish national pension 52

funds divested from Elbit as well (2010).53

 “A Resolution Regarding California Assembly Bill HR 35,” University at California Student Association 46

http://ucsa.org/document/view/236

UC Irvine student leaders urge UC to divest from some companies. LA Times, November 14, 2012: 47

http://latimesblogs.latimes.com/lanow/2012/11/uc-irvine-student-leaders-urge-uc-to-divest-in-some-companies.html

UC Irvine Students Vote to Divest From Israel. The Nation, November 27, 2012:

http://www.thenation.com/blog/171471/uc-irvine-students-vote-divest-israel#

UC San Diego council seeks divestment from firms with West Bank ties. LA Times, March 14, 2013: 48

http://latimesblogs.latimes.com/lanow/2013/03/uc-san-diego-council-joins-calls-for-divesting-firms-with-west-bankties.html

 “UC Riverside student leaders revoke divestment resolution,” Los Angeles Times, April 4, 2013: 49

http://articles.latimes.com/2013/apr/04/local/la-me-0405-uc-riverside-20130405

Davis v. Cox, Tr. of Decision, Civ. No. 11-2-01925-7, at 24 (Thurston County WA Superior Ct. Feb. 23, 50

2012): accessible online at http://ccrjustice.org/files/02-27-12%20Davis%20v.%20Cox.PDF

 “Norway's Pension Fund Drops Israel's Elbit,” The Wall Street Journal, September 3, 2009: 51

http://online.wsj.com/article/SB125197496278482849.html

 “Swedish pension giant divests from Elbit,” Jerusalem Post, March 31, 2010 52

http://www.jpost.com/Israel/Swedish-pension-giant-divests-from-Elbit

The Annual Report of the Ethical Council 2009 – Dialogue and cooperation are effective tools for influencing

companies: http://www.ap2.se/en/Financial-information/Press-releases/2010/The-Annual-Report-of-the-EthicalCouncil-2009--Dialogue-and-cooperation-are-effective-tools-for-influencing-companies/

Swedish pension firm drops Israeli co. in protest. Associated Press, April 1, 2010: 53

http://www.boston.com/business/articles/2010/04/01/israel_regrets_swedish_funds_exclusion_of_firm/

Page 13 of 34
• Danske Bank divested from Elbit and Africa Israel (2010).54

• New Zealand Superannuation Fund divested from Elbit, Africa-Israel, and Shikui Binui

(2012).55

These developments, and many others, vastly propelled the issue of the Israeli occupation of

Palestine to the forefront of international human rights issues. In these last two years the Israeli

occupation of Palestine has taken the place apartheid South Africa once occupied on American

college campuses.

H. Israel’s settlement activity is contrary to official US policy and is the target of

increasingly widespread public debate and media attention in the US and Israel.

US President Barack Obama reiterated the point that the U.S. officially opposes continued Israeli

settlement activity when he visited Israel and the occupied Palestinian territories on March 21,

2013 and said “continued settlement activity is counterproductive to the cause of peace.” 56

According to the CNN article, “Obama: 'Peace is possible,' but see the world as Palestinians

do ,” President Obama further said: 57

"Put yourself in their shoes -- look at the world through their eyes," he said. "It is not fair that

a Palestinian child cannot grow up in a state of her own, and lives with the presence of a

foreign army that controls the movements of her parents every single day. It is not just when

settler violence against Palestinians goes unpunished. It is not right to prevent Palestinians

from farming their lands; to restrict a student's ability to move around the West Bank; or to

displace Palestinian families from their home."

He added that "neither occupation nor expulsion is the answer," saying, "just as Israelis built

a state in their homeland, Palestinians have a right to be a free people in their own land."

We respectfully ask the SEC to consider that when President Obama talked of what is fair, the

presence of a foreign army that controls movements of parents, settler violence going

 “Israel uforstående over for Danske Bank,” Berlingske, January 25, 2010: 54

http://www.business.dk/finans/israel-uforstaaende-over-danske-bank. 

Translation at:

http://translate.google.com/translate?hl=en&sl=da&tl=en&u=http%3A%2F%2Fwww.business.dk%2Ffinans%2Fisra

el-uforstaaende-over-danske-bank&anno=2

 “New Zealand Superannuation Fund excludes three companies on responsible investment grounds,” 55

December 12, 2012 http://www.nzsuperfund.co.nz/news.asp?pageID=2145831983&RefID=2141742545

“Obama tells Israelis that settlement activity hurts peace,” Reuters,

56

http://www.reuters.com/article/2013/03/21/us-israel-palestinians-obama-speech-idUSBRE92K0Q320130321

“Obama: 'Peace is possible,' but see the world as Palestinians do” By Tom Cohen. John King and Jessica 57

Yellin, CNN updated 9:15 AM EDT, Thu March 21, 2013, 

http://www.cnn.com/2013/03/21/politics/obama-mideast-visit/index.html

Page 14 of 34
unpunished, preventing Palestinians from farming their own land, a student’s ability to move

around, and Palestinian families displaced from their home, President Obama was himself

engaging in the widespread public debate regarding the Israeli occupation of Palestine. Israeli

columnist Gideon Levy in the Israeli daily newspaper, Haaretz on March 22, 2013 put President

Obama’s speech in context of the widespread public debate in his article, “Barack Obama has a

dream, and we should listen.” 58

On the podium with President Obama when he then visited Palestine was Palestinian President 

Mahmoud Abbas. According to CNN, “Abbas, however, said the Israeli settlements are ‘more

than a hurdle to peace,’ calling them illegal and saying it was Israel's duty to stop building them.”

When the President of the United States made these remarks in Israel and heard those remarks

from President Abbas upon his visit to Palestine, argument collapsed about whether the issue of

the occupation of Palestine is one of widespread public debate. When the President of the United

States entered this debate with such important policy points, there could no longer be doubt that

there is increasing recognition that the issue of the occupation of Palestine raises significant

social policy issues. 

The widespread public debate was further illustrated in the article by Israeli columnist Gideon

Levy in Haaretz on March 24, 2013: “‘Obama never stood a chance with Israel's analysts’ – 59

“Barack Obama has a dream, and we should listen,” by Gideon Levy, Haaretz, March 22, 2013, 58

illustrating the importance of the speech in the widespread public debate, Levy’s article states: “It was the speech of

justice. If there are still historical speeches, then this speech from Barack Obama's can be classified as one of them.

No American president has ever delivered a speech like this, nor has any Israeli statesman. American presidents and

even Israel prime ministers have talked about two states; but no one spoke of natural justice the way Obama did, a

concept that should be obvious; obvious to every decent citizen in the world today; and which should serve as a

beacon for every Israeli citizen with a conscience. 

“What began as a speech that could have been given before AIPAC soon evolved into a speech by Martin Luther

King. If Martin Luther Obama's Cairo speech resonated deeply and sparked revolutions (which didn't always start

well), then maybe this speech at the Jerusalem Convention Center will also resonate deeply and spark revolutions.

The president of the United States took a step toward the fundamental value: justice. Now it's Israelis' turn to do so.

“It won’t happen immediately – Israeli society is too preoccupied with shallow things – but maybe the seed has been

planted. Perhaps at the end of a busy day considering the ‘universal draft law,’ Israelis will also listen to these

powerful statements about occupation and deportation, Palestinian children and settlers, freedom for all and peace as

the only path to true security. ”

http://www.haaretz.com/opinion/barack-obama-has-a-dream-and-we-should-listen.premium-1.511391

 “Obama never stood a chance with Israel's analysts,” by Gideon Levy, Haaretz, March 24, 2013. 59

Illustrating the widespread public debate, the article begins:

“U.S. President Barack Obama never stood a chance. It was not Israeli public opinion he had to conquer, not Prime

Minister Benjamin Netanyahu to persuade. His assignment was to break down the iron wall of Israeli political

commentators, and that is a mission impossible even for a statesman of his caliber.

“Barely did he finish his resounding speech before it was engulfed in waves of sour, skeptical, judgmental negativity

from our studio analysts. If anyone tries to talk about hope, peace and justice, they’ll tell you how “naive” and

“childish” it is.” 

http://www.haaretz.com/opinion/obama-never-stood-a-chance-with-israel-s-analysts.premium-1.511540

Page 15 of 34
Obama barely finished his speech before it was engulfed in waves of sour, skeptical, judgmental

negativity from our studio analysts. If anyone tries to talk about hope, peace and justice, they’ll

tell you how 'naive’ and 'childish’ it is.”

The widespread public debate was also illustrated in the article “In Their Shoes,” by Israeli 60

columnist Uri Avneri, published on April 5, 2013, who said that President Obama did not go far

enough in putting himself in the shoes of the Palestinians: 

Obama in Israel: Every word right. Every gesture genuine. Every detail in its place.

Perfect. 

Obama in Palestine: Every word wrong. Every gesture inappropriate. Every single detail

misplaced. Perfect.

. . . 

He told his Israeli audience to “put yourselves in the shoes of the Palestinians.” But did

he do so himself? Can he imagine what it means to wait every night for the brutal banging

on the door? To be woken by the noise of bulldozers approaching, wondering whether

they are coming to destroy your home? To see a settlement growing on your land and

waiting for the settlers to come and carry out a pogrom in your village? Being unable to

move on your roads? To see your father humiliated at the road blocks? To throw stones at

armed soldiers and brave tear gas, rubber-coated steel bullets and sometimes live

ammunition?

Can he even imagine having a brother, a cousin, a loved one in prison for many, many

years because of his patriotic actions or beliefs, after facing the arbitrariness of a military

“court,” or even without a “trial” at all?

This week, a prisoner called Maisara Abu-Hamdiyeh died in prison, and the West Bank

exploded in rage. Israeli journalists ridiculed the protest, stating that the man died from a

fatal disease, so Israel could not be blamed.

Did any of them imagine for a moment what it means for a human being to suffer from

cancer, with the disease slowly spreading through his body, deprived of adequate

treatment, cut off from family and friends, seeing death approaching? What if it had been

their father?

The occupation is not an abstract matter. It is a daily reality for two and a half million

Palestinians in the West Bank and East Jerusalem - not to mention the restrictions on

Gaza.

It does not concern only the individuals practically denied all human rights. It

primarily concerns the Palestinians as a nation.

 “In Their Shoes,” by Uri Avneri, Counterpunch April 5-7, 2013 60

http://www.counterpunch.org/2013/04/05/obamas-empathy-deficit-in-palestine/ (published on many websites)

Page 16 of 34
We Israelis, perhaps more than anyone else, should know that belonging to one’s nation,

in one’s own state, under one’s own flag, is a basic right of every human being. In the

present epoch, it is an essential element of human dignity. No people will settle for less. 

The cover story in the New York Times Magazine on March 15, 2013, “Is This Where the Third

Intifada Will Start?,” by Ben Ehrenreich, further illustrates the widespread public debate on the 61

issue. That a lengthy feature on life under the occupation is the cover story shows that the issue

has reached center stage. 

I. Israel’s settlement activity is contrary to international law.

The settlements are illegal under article 49 of the Fourth Geneva Convention62 (ratified by the

US on February 8, 1955): “The Occupying Power shall not deport or transfer parts of its own

civilian population into the territory it occupies.” 

The “Commentary” associated with this clause states: 63

[This clause] is intended to prevent a practice adopted during the Second World War by

certain Powers, which transferred portions of their own population to occupied territory

for political and racial reasons or in order, as they claimed, to colonize those territories.

Such transfers worsened the economic situation of the native population and endangered

their separate existence as a race.

The “political and racial reasons,” “colonize,” “worsened,” and “endangered” highlighted in the

commentary are fully applicable to the violation of article 49 by the responsible Israeli

government and military officials and their corporate collaborators. A BBC news item on January

31, 2013, “UN: Israeli settlements 'violate Palestinian rights’,” describes a 39 page 64 UN Human

Rights Council report and illustrates recognition of these issues: 65

“Is This Where the Third Intifada Will Start?,” by Ben Ehrenreich, New York Times Magazine on March 61

15, 2013, 

http://www.nytimes.com/2013/03/17/magazine/is-this-where-the-third-intifada-will-start.html?pagewanted=all&_r=0

“Convention (IV) relative to the Protection of Civilian Persons in Time of War,” Geneva, 12 August 62

1949, http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument

Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949. 63

Commentary regarding article 49 -- Deportations, Transfers, Evacuations

http://www.icrc.org/ihl.nsf/COM/380-600056?OpenDocument

 “Obama never stood a chance with Israel's analysts,” by Gideon Levy, Haaretz.com, March 24, 2013 64

http://www.bbc.co.uk/news/world-middle-east-21274061

“Report of the independent international fact-finding mission to investigate the implications of the Israeli 65

settlements on the civil, political, economic, social and cultural rights of the Palestinian people throughout the

Occupied Palestinian Territory, including East Jerusalem”, UN Human Rights Council, Twenty-second session

http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session22/A-HRC-22-63_en.pdf

Page 17 of 34
About 520,000 Israeli settlers reside in about 250 separate settlements in East Jerusalem

and the rest of the West Bank, the report states. Some of the settlements were built

without government authorisation.

The growth in the settler population has hastened over the past decade compared to

growth in Israel. The government in place since April 2009, led by Prime Minister

Benjamin Netanyahu, has "contributed to the consolidation and expansion" of

settlements, the report states.

The settlements violate the Fourth Geneva Convention, which prevents an occupying

power from transferring its own population into occupied territory, the report states.

"The transfer of Israeli citizens into the Occupied Palestinian Territories, prohibited under

international humanitarian law and international criminal law, is a central feature of

Israel's practices and policies," it adds.

The UN Human Rights Council issued a press release describing the report, “Israeli Settlements

Symbolise the Acute Lack of Justice Experienced by the Palestinian People,” January 31, 2013: 66

“In compliance with Article 49 of the Fourth Geneva Convention Israel must cease all

settlement activities without preconditions,” said Ms. Christine Chanet, chair of the

Mission from France.

The report states that settlements are established and developed for the exclusive

benefit of Israeli Jews. The settlements are maintained and advanced through a system

of total segregation between the settlers and the rest of the population living in the

Occupied Palestinian Territory. This system of segregation is supported and facilitated by

strict military and law enforcement control to the detriment of the rights of the Palestinian

population.

. . . 

The report states that Israel is committing serious breaches of its obligations under the

right to self-determination and under humanitarian law. The report also concludes that

the Rome Statute establishes the International Criminal Court's jurisdiction over the

transfer of populations in the Occupied Palestinian Territory.

“The magnitude of violations relating to Israel’s policies of dispossessions, evictions,

demolitions and displacements from land shows the widespread nature of these

breaches of human rights. The motivation behind violence and intimidation against the

Palestinians and their properties is to drive the local populations away from their lands,

allowing the settlements to expand,” said Ms. Unity Dow, member of the Mission from

Botswana. 

The report states that private entities have also enabled, facilitated and profited from

UN Human Rights Council press release, January 31, 2013 66

http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=12960&LangID=E

Page 18 of 34
the construction of the settlements – both directly and indirectly. (Emphasis added).

In addition to the Fourth Geneva Convention, the Human Rights Council report cites the Rome

Statute of the International Criminal Court that in article 8(2)(b)(viii) makes a war crime: “The 67

transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population

into the territory it occupies, or the deportation or transfer of all or parts of the population of the

occupied territory within or outside this territory.” 

In addition, the illegal settlements were made a “grave breach” under article 85 subparagraph 4a

of Additional Protocol I to the Geneva Conventions (signed but not yet ratified by the US; 68

ratified by 170 other countries): 

4. In addition to the grave breaches defined in the preceding paragraphs and in the

Conventions, the following shall be regarded as grave breaches of this Protocol, when

committed wilfully and in violation of the Conventions or the Protocol:

(a) the transfer by the occupying Power of parts of its own civilian population into the

territory it occupies, or the deportation or transfer of all or parts of the population of the

occupied territory within or outside this territory, in violation of Article 49 of the Fourth

Convention. . . 

The commentary regarding this subparagraph of Additional Protocol I states: 69

Thus the new element in this sub-paragraph concerns the transfer by the Occupying

Power of parts of its own civilian population into the territory it occupies: this practice,

which was a breach, is now a grave breach because of the possible consequences for the

population of the territory concerned from a humanitarian point of view. 

J. The Occupation includes official and de facto segregation and discrimination.

The illegal settlements on occupied Palestinian territory are exclusively Jewish. Palestinians are

excluded from living in these settlements on Palestinian land, as described in the latest

Department of State Country Reports on Human Rights Practices (Executive Summary) for 70

Rome Statute of the International Criminal Court 67 http://untreaty.un.org/cod/icc/statute/romefra.htm

 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of 68

Victims of International Armed Conflicts (Protocol I), 8 June 1977,

http://www.icrc.org/ihl.nsf/FULL/470?OpenDocument

Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of 69

Victims of International Armed Conflicts (Protocol I), 8 June 1977,

http://www.icrc.org/ihl.nsf/WebList?ReadForm&id=470&t=com

US Department of State, “Country Reports on Human Rights Practices for 2011, Israel and the occupied 70

territories - the occupied territories,” Executive Summary and link to full report

http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dynamic_load_id=186430#wrapper

Page 19 of 34
2011 (released May 24, 2012) or from the full State Department report: 

71

C Access to social and commercial services, including housing, education, and health

care, in Israeli settlements in the West Bank was available only to Israelis. Israeli

officials discriminated against Palestinians in the West Bank and Jerusalem

regarding access to employment and legal housing by denying Palestinians access to

registration paperwork. In both the West Bank and Jerusalem, Israeli authorities

placed often insurmountable hurdles on Palestinian applicants for construction

permits, including the requirement that they document land ownership in the absence

of a uniform post-1967 land registration process, high application fees, and

requirements that new housing be connected to often unavailable municipal works. (p.

72) (Emphasis added).

C Israeli law applies to Israeli settlements in the West Bank and Jerusalem but was not

uniformly enforced. Most settlements apply to Palestinian workers Jordanian labor

law as it existed prior to 1967, which provides for lower wages and fewer protections

than Israeli law. (p. 75)

C Israelis living in settlements in the West Bank and in East Jerusalem were tried under

Israeli civil law in the nearest Israeli district court. Israeli civil law applied to

Palestinian residents of East Jerusalem. Palestinians held by Israeli authorities in the

West Bank or in Israel were subject to trial in Israeli military courts. (p. 44)

C Palestinians were prohibited from driving on most roads in downtown Hebron [a

Palestinian city deep in the West Bank, whose Old City has been colonized by Israeli

settlers] and from walking on Shuhada Street and other roads in the Old City;

however, Israeli settlers were permitted free access to these roads. (p. 59)

C The IDF continued its use of a 1967 military order that effectively prohibited

Palestinian demonstrations and limited freedom of speech in the West Bank. The

order stipulates that a “political” gathering of 10 or more persons requires a permit

from the regional commander of military forces. The penalty for a breach of the order

is 10 years’ imprisonment or a heavy fine. (p. 55)

Dozens of discriminatory laws have been enacted discriminating against Palestinians living in

Israel, as described in the article “New Discriminatory Laws and Bills in Israel,” by Adalah, 72

The Legal Center for Arab Minority Rights in Israel. Adalah has also compiled a database of the

US Department of State, “Country Reports on Human Rights Practices for 2011, Israel and the occupied 71

territories - the occupied territories,” Full Report http://www.state.gov/documents/organization/190656.pdf

“New Discriminatory Laws and Bills in Israel,” by Adalah, The Legal Center for Arab Minority Rights in 72

Israel. The article describes new laws and pending bills “that discriminate against the Palestinian minority in Israel,

threaten their rights as citizens of the state, and in some cases harm the rights of Palestinian residents of the OPT.”

http://adalah.org/Public/files/English/Legal_Advocacy/Discriminatory_Laws/Discriminatory-Laws-in-Israel-October

-2012-Update.pdf

Page 20 of 34
more than 50 such discriminatory laws.73

Discriminatory laws and practices in the occupied Palestinian territories are described in a 170-

page report issued by Human Rights Watch, “Separate and Unequal, Israel’s Discriminatory

Treatment of Palestinians in the Occupied Palestinian Territories,” issued in 2010: 74

This report consists of a series of case studies that compare Israel’s different

treatment of Jewish settlements to nearby Palestinian communities throughout the

West Bank, including East Jerusalem. It describes the two-tier system of laws,

rules, and services that Israel operates for the two populations in areas in the West

Bank under its exclusive control, which provide preferential services,

development, and benefits for Jewish settlers while imposing harsh conditions on

Palestinians. The report highlights Israeli practices the only discernable purposes

of which appear to be promoting life in the settlements while in many instances

stifling growth in Palestinian communities and even forcibly displacing

Palestinian residents. Such different treatment, on the basis of race, ethnicity, and

national origin and not narrowly tailored to meet security or other justifiable

goals, violates the fundamental prohibition against discrimination under human

rights law.

In his remarks quoted earlier in this letter, President Obama listed a few of the ways Palestinians

in the occupied territories experience discrimination. South African Archbishop Desmond Tutu,

wrote an opinion piece, “Justice requires action to stop subjugation of Palestinians,” Tampa 75

Bay Times, April 30, 2012, which states: 

A quarter-century ago I barnstormed around the United States encouraging

Americans, particularly students, to press for divestment from South Africa.

Today, regrettably, the time has come for similar action to force an end to Israel's

long-standing occupation of Palestinian territory and refusal to extend equal rights

to Palestinian citizens who suffer from some 35 discriminatory laws.

. . . 

Many black South Africans have traveled to the occupied West Bank and have

been appalled by Israeli roads built for Jewish settlers that West Bank Palestinians

are denied access to, and by Jewish-only colonies built on Palestinian land in

violation of international law. 

“Discriminatory Laws in Israel,” Adalah, The Legal Center for Arab Minority Rights in Israel 73

http://adalah.org/eng/Israeli-Discriminatory-Law-Database

“Separate and Unequal, Israel’s Discriminatory Treatment of Palestinians in the Occupied Palestinian 74

Territories,” Human Rights Watch, December 2010

http://www.hrw.org/sites/default/files/reports/iopt1210webwcover_0.pdf

“Justice requires action to stop subjugation of Palestinians,” by Desmond Tutu, Tampa Bay Times, April 75

30, 2012

http://www.tampabay.com/opinion/columns/justice-requires-action-to-stop-subjugation-of-palestinians/1227722

Page 21 of 34
Black South Africans and others around the world have seen the 2010 Human

Rights Watch report which "describes the two-tier system of laws, rules, and

services that Israel operates for the two populations in areas in the West Bank

under its exclusive control, which provide preferential services, development, and

benefits for Jewish settlers while imposing harsh conditions on Palestinians.” 

This, in my book, is apartheid.

“Report Uncovers 'Water-Apartheid' in the Occupied West Bank--Study of Israel's discriminatory

practices links water grab to settlement expansions in occupied Palestinian territory,” by Lauren 76

McCauley, April 9, 2013, Common Dreams, states: 

A new report on Israel's water grab in the occupied West Bank links the

widespread deprivation of Palestinian water rights to Israel's settlement expansion

strategy, saying both demonstrate "a clear testament to its colonial and apartheid

motives."

Published Monday by the Ramallah-based human rights organization Al-Haq,

"Water for One People Only: Discriminatory Access and 'Water-Apartheid' in the

Occupied Palestinian Territory," (pdf) reports that Israel has claimed up to 89% 77

of an underground aquifer that is largely located in the West Bank, giving

Palestinians only access to the remaining 11%.

The water grab has fueled increased discrepancy in water usage in the region with

the 500,000 Jewish settlers consuming approximately six times the amount of

water used by the 2.6 million Palestinians living in the West Bank—with the

discrepancy growing even greater when agricultural water use is accounted for. 

In his book, Palestine: Peace Not Apartheid, former President Jimmy Carter described several 78

options for Israel. The options included a "system of apartheid, with two peoples occupying the

same land but completely separated from each other, with Israelis totally dominant and

suppressing violence by depriving Palestinians of their basic human rights. This is the policy now

being followed . . ."

“Report Uncovers 'Water-Apartheid' in the Occupied West Bank--Study of Israel's discriminatory 76

practices links water grab to settlement expansions in occupied Palestinian territory,”

http://www.commondreams.org/headline/2013/04/09-6

See also, “Troubled Waters: Palestinians Denied Fair Access to Water,” Amnesty International (2009): 

http://www.amnesty.org/en/library/asset/MDE15/027/2009/en/e9892ce4-7fba-469b-96b9-

c1e1084c620c/mde150272009en.pdf

Al-Haq, "Water for One People Only: Discriminatory Access and 'Water-Apartheid' in the Occupied 77

Palestinian Territory," 

http://www.alhaq.org/publications/publications-index?task=callelement&format=raw&item_id=107&element=304e4

493-dc32-44fa-8c5b-57c4d7b529c1&method=download

Palestine: Peace Not Apartheid by Jimmy Carter, Simon & Schuster, 2006 78

Page 22 of 34
In an article published in Yediot Acharonot, Israel’s largest circulation daily newspaper, “Indeed

there is Apartheid in Israel,” December 31, 2006, former Israeli Minister of Education, 79

Shulamit Aloni wrote: 

Jewish self-righteousness is taken for granted among ourselves to such an extent

that we fail to see what’s right in front of our eyes. It’s simply inconceivable that

the ultimate victims, the Jews, can carry out evil deeds. Nevertheless, the state of

Israel practises its own, quite violent, form of Apartheid with the native

Palestinian population.

The US Jewish Establishment’s onslaught on former President Jimmy Carter is

based on him daring to tell the truth which is known to all: through its army, the

government of Israel practises a brutal form of Apartheid in the territory it

occupies. Its army has turned every Palestinian village and town into a fenced-in,

or blocked-in, detention camp. All this is done in order to keep an eye on the

population’s movements and to make its life difficult. Israel even imposes a total

curfew whenever the settlers, who have illegally usurped the Palestinians’ land,

celebrate their holidays or conduct their parades.

If that were not enough, the generals commanding the region frequently issue

further orders, regulations, instructions and rules (let us not forget: they are the

lords of the land). By now they have requisitioned further lands for the purpose of

constructing “Jewish only” roads. Wonderful roads, wide roads, well-paved roads,

brightly lit at night – all that on stolen land. When a Palestinian drives on such a

road, his vehicle is confiscated and he is sent on his way.

On one occasion I witnessed such an encounter between a driver and a soldier

who was taking down the details before confiscating the vehicle and sending its

owner away. “Why?” I asked the soldier. “It’s an order – this is a Jews-only road,”

he replied. I inquired as to where was the sign indicating this fact and instructing

[other] drivers not to use it. His answer was nothing short of amazing. “It is his

responsibility to know it, and besides, what do you want us to do, put up a sign

here and let some antisemitic reporter or journalist take a photo so he that can

show the world that Apartheid exists here?”

Indeed Apartheid does exist here. 

“Indeed There Is Apartheid In Israel,” by Shulamit Aloni, Original Hebrew: Yediot Acharonot, December 79

31, 2006 http://www.ynet.co.il/articles/0,7340,L-3346283,00.html

English translation: http://www.scoop.co.nz/stories/HL0701/S00070/shulamit-aloni-there-is-apartheid-in-israel.htm

Page 23 of 34
A news article in the Washington Post on March 4, 2013, “Israel’s Palestinian-only buses draw

accusations of segregation, apartheid,” states: 80

Israeli editorials decried a descent into what critics called apartheid. The country’s

left-wing Meretz party condemned “segregated busing” as unacceptable for

democracy. On its blog, the quarterly Jacobin simply posted the text of a Haaretz

article above the text for Plessy v. Ferguson, the 1896 court decision that

established the “separate but equal” doctrine in the U.S.

“Creating separate bus lines for Israeli Jews and Palestinians is a revolting plan,”

said Jessica Montell, a human rights activist quoted in Al-Jazeera English. “This

is simply racism. Such a plan cannot be justified with claims of security needs or

overcrowding.”

But the outrage overlooks an unfortunate reality in modern Israel: Israeli Jews and

their Arab neighbors already get different treatment. As the Wall Street Journal

points out, Israelis and Palestinians in the West Bank have long been funneled

into different legal systems — the former to Israel’s criminal system, “where the

rights and legal protections are on par with any Western democracy,” and the

latter to military courts dating back to 1967.

A news article in the Wall Street Journal on March 4, 2013, “Split Israel Bus Lines Spur

Segregation Debate,” states: 81

Palestinians and Israelis living side-by-side in the West Bank are governed by a

dual system riven with inequalities that rarely make headlines in Israel.

Parallel legal systems govern the lives of both peoples. Israelis charged with a

crime in the West Bank are channeled into Israel's criminal justice system, where

the rights and legal protections are on par with any Western democracy.

Palestinians are subjected to military courts, established after Israel won the West

Bank from Jordan during the Arab-Israeli war in 1967.

Many of the protections enshrined in Israel's legal code don't exist in the military

courts, where military appellate court judges draw on Jordanian law, British-era

laws and Israeli military decrees dating back to 1967. Israel says the dual systems

are necessary to battle Palestinian terror networks.

“Israel’s Palestinian-only buses draw accusations of segregation, apartheid,” by Max Fisher and the 80

Washington Post Foreign Staff, March 4, 2013

http://online.wsj.com/article/SB10001424127887324178904578340541101396634.html

“Split Israel Bus Lines Spur Segregation Debate,” By Charles Levinson, Wall Street Journal, March 4, 81

2013, “New Transport for Palestinian Workers From West Bank Brings Touchy Issue of Inequality Between Two

Peoples to Forefront” http://online.wsj.com/article/SB10001424127887324178904578340541101396634.html

Page 24 of 34
"Buses are a symbol of segregation," said Hagit Ofran, of Peace Now, an Israeli

pro-peace group. "That may be the reason we get so much interest about it.

Segregation is all over the occupation, but when it comes to buses it looks very

bad."

Anything that hints at segregation, with its historical connection to South African

apartheid and the American civil-rights movement, is a particularly explosive

issue in a country that takes pride in being a Western-style democracy.

But the issue has increasingly sneaked into the public debate. The country's

Minister of Defense, Ehud Barak, was perhaps the first senior Israeli leader to

publicly warn that Israel's policies in the West Bank risked leading Israel toward

being "an apartheid state."

"If, and as long as between the Jordan and the sea, there is only one political

entity, named Israel, it will end up being either non-Jewish or non-democratic...If

the Palestinians vote in elections, it is a binational state, and if they don't, it is an

apartheid state," Mr. Barak said at a security conference in 2010.

All six living ex-directors of Israel's internal Shin Bet security service, the lead

agency in fighting Palestinian terror, recently participated in the Oscar-nominated

documentary “The Gatekeepers,” to warn against Israel's continued presence in

the West Bank.

 An opinion article in the New Statesman on March 5, 2013, “Segregation and echoes of

apartheid: Israel launches Palestinian-only buses,” by Rachel Shabi points out that “separation 82

and discrimination is a numbing fact of life for Palestinians in the West Bank”:

The West Bank is already a grid of A-roads and B-roads, with Palestinians and

Jewish settlers funnelled into either according to colour-coded ID cards and

number plates. This unofficial system just got extra hardware, with the

introduction of a new Israeli bus line, for Palestinians with the right permits, who

erroneously believed they could use settler transport to get to their wage-slave

jobs in Israel. And Israel says they still can do so, of course – except that drivers

and border police have already indicated that Palestinians choosing the “wrong”

bus will be directed to the right ones. Officially, there is no segregation. In

practice, there plainly is.

“Segregation and echoes of apartheid: Israel launches Palestinian-only buses,” by Rachel Shabi, 5 March 82

2013, “Separation and discrimination is a numbing fact of life for Palestinians in the West Bank”

http://www.newstatesman.com/world-affairs/2013/03/segregation-and-apartheid-israel-launches-palestinian-only-buses

Page 25 of 34
A May 2012 map shows “Israel's system of segregated roads in the occupied Palestinian

territories.”83

An article in The Telegraph on March 3, 2013, “Israel launches Palestinian-only buses amid

accusations of racial segregation,” states: 84

Campaigners say troops began ordering Palestinians with Israeli work permits off

buses after settlers made complaints last November.

After witnessing one such incident, Ms Yeshua-Lyth lodged a report with

Makhsom Watch, an Israeli group that monitors check point incidents. She

described how soldiers herded around 30 Palestinian workers from a bus

travelling from Tel Aviv to the West Bank.

“The soldier/officer roars: “Udrub!” (Move!) And then: “Sit on your butts! On

your butts!,” she wrote. “They are then marched to the terminal fence and made to

stand along it in a line, then to sit on the cold ground and wait.”

When the men asked why they had been taken from the bus, they were told

“You’re not allowed to be on Highway 5” and “You’re not allowed to use public

transportation at all.” 

K. Discrimination is specifically identified by the SEC in 17 CFR Part 240 as a 85

“significant social policy issue”:

The policy underlying the ordinary business exclusion rests on two central considerations.

The first relates to the subject matter of the proposal. Certain tasks are so fundamental to

management's ability to run a company on a day-to-day basis that they could not, as a

practical matter, be subject to direct shareholder oversight. Examples include the

management of the workforce, such as the hiring, promotion, and termination of

employees, decisions on production quality and quantity, and the retention of suppliers.

However, proposals relating to such matters but focusing on sufficiently significant social

policy issues (e.g., significant discrimination matters) generally would not be

considered to be excludable, because the proposals would transcend the day-to-day

“Visualizing Palestine, On Israel's system of segregated roads in the occupied Palestinian territories,” by 83

Ahmad Barclay, May 2012 http://visualizingpalestine.org/infographic/segregated-roads-west-bank

“Israel launches Palestinian-only buses amid accusations of racial segregation,” by Robert Tait, 03 Mar 84

2013: “Israel has been accused of encouraging racial segregation after a new Palestinian-only bus service was

launched following objections by Jewish settlers who claimed Arab passengers were ‘a security risk’.” 

http://www.telegraph.co.uk/news/worldnews/middleeast/israel/9906113/Israel-launches-Palestinian-only-buses-amidaccusations-of-racial-segregation.html

Final Rule: Amendments to Rules on Shareholder Proposals, Securities and Exchange Commission, 17 85

CFR Part 240, Release No. 34-40018; IC-23200; File No. S7-25-97, RIN 3235-AH20, Amendments to Rules on

Shareholder Proposals, http://www.sec.gov/rules/final/34-40018.htm#foot39

Page 26 of 34
business matters and raise policy issues so significant that it would be appropriate for a

shareholder vote. 

As CREF holds in its portfolio private companies that are engaged in work to support or facilitate

such discrimination in the occupied Palestinian territories, under this SEC rule a proposal

focusing on this significant social policy issue would be appropriate for a shareholder vote.

L. Egregious violations of human rights in addition to those so far identified

This letter has so far quoted sources identifying egregious human rights issues, including illegal

settlements on occupied territory, abuse of prisoners, restrictions of movement, a foreign

occupying army, restricted access to farmland, demolitions and displacements from homes,

humiliation, the firing of rubber coated steel bullets and live ammunition, segregation,

discrimination, the lack of equal rights, different laws for Israelis and for Palestinians living

under occupation, requisitioning of lands, segregated buses, segregated roads, and discriminatory

allocation of water. 

Amnesty International describes torture and other ill treatment, detention without trial, unfair 86

trials, excessive use of force, forced eviction, and the Gaza blockade. The widely reported

“Report of the United Nations Fact-Finding Mission on the Gaza Conflict,” describes violations 87

of International Humanitarian Law committed by Israeli forces during the 18-day assault on Gaza

in 2008-2009. Human Rights Watch found violations committed by Israeli forces during the 8-

day assault on Gaza in November 2012.88

M. CREF states that the issue is “highly controversial” and that there is “no broad

consensus” but these admissions are consistent with the issue being one of

“widespread public debate.”

CREF acknowledges that the issue is “highly controversial” (CREF letter March 22, 2013 at page

5). CREF argues, however, that, unlike the anti-genocide proposals regarding the Sudan, “there is

no broad consensus” on the occupation of Palestine. From this CREF concludes that the issue

does not meet the SEC criteria.

Proponents ask the SEC to consider that the view that the issue is highly controversial and that

there is no broad consensus is consistent with the issue being one of “widespread public debate,”

a component of SEC decision making that allows the SEC to decide that an issue goes beyond

the ordinary business exclusion. 

 “Amnesty International Annual Report, 2012, Israel and the Occupied Palestinian,” Territories 86

http://www.amnesty.org/en/region/israel-occupied-palestinian-territories/report-2012

“Report of the United Nations Fact-Finding Mission on the Gaza Conflict,” September 25, 2009 87

http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/A-HRC-12-48.pdf

“Israel: Gaza Airstrikes Violated Laws of War--Israeli Attacks Killed Civilians, Destroyed Homes 88

Without Lawful Justification” HRW http://www.hrw.org/news/2013/02/12/israel-gaza-airstrikes-violated-laws-war

Page 27 of 34
CREF appears to be putting forward a different standard in an effort to meet its burden to

demonstrate that it is entitled to exclude the proposal. The actual standard for the exception to the

ordinary business exclusion is “widespread public debate and increasing recognition that the

issue raises significant social and corporate policy issues.” Instead, CREF asserts, without

support or citation, that the occupation of Palestine must be a "widely accepted" as wrongful for

the issue to meet its imagined SEC standard to transcend the ordinary business exclusion. The

points it makes are not dispositive as to whether the actual exception to the ordinary business

exclusion is or is not satisfied. In asserting a different standard, CREF implicitly admits that it

cannot meet the actual SEC standard to exclude the resolution from a vote. 

N. Ending investment is not illegal, and no laws or policies discourage it.

CREF also states that on the Sudan issue, the US Congress passed a law designed “to make it

easier for fiduciaries to divest from companies deemed to support human rights atrocities in

Sudan.” In contrast, CREF argues, “the United States adopted laws designed to discourage and,

in some circumstances, prohibit U.S. companies from furthering or supporting foreign

boycotts of Israel.” 

However, the proponents of the present resolution would respectfully ask the Staff to

consider that the proposal calls on CREF to “end investments in companies,” not to boycott. 

While among the list of ways the supporting statement shows widespread public debate on

the issue are calls for boycott by the U.N. Special Rapporteur on the situation of human

rights in the occupied Palestinian territories and by the United Methodist Church, the 

Presbyterian Church (USA) and the United Church of Canada, the resolution itself does not

call for boycott. Government policy regarding boycott is irrelevant. 

The resolution calls for ending “investments in companies that, in the trustees’ judgment,

substantially contribute to or enable egregious violations of human rights, including

companies whose business supports the Israeli occupation.” One company mentioned as an

example in the supporting statement, Veolia Environment, is a French company. 

CREF acknowledges that the only boycotts of Israel that the United States ever prohibited were

“foreign boycotts,” that is those initiated by a foreign government under the now expired Export

Administration Act’s anti-boycott provisions. The expired law regarding foreign boycotts of 89

Israel and any implementing regulations have no bearing on a shareholder resolution that does

not call for boycott and that was initiated by no foreign government but by CREF’s own

participants.

Neither the supporting statement nor the resolved clause of the present proposal recites

deference to any foreign country. The supporting statement cites the U.N. Special

Rapporteur, U.S. and Canadian churches, and NGOs. The campaign supporting the present

See CREF letter, at 5, n.14. 89

Page 28 of 34
proposal includes a coalition of U.S. nonprofit organizations after its launch by Jewish 90

Voice for Peace, a California-based nonprofit organization dedicated to grassroots activism

within the U.S. A call for a human rights-inspired boycott initiated by any such individuals,

churches, NGOs, or grassroots organizations has not been prohibited under US law, past or

present. To the contrary, such calls for boycott are protected by the First Amendment of the

Constitution. Thus, if the resolution had called upon CREF to boycott companies 91

supporting human rights violations, including those committed to sustain and expand the

Israeli occupation, it would not have been prohibited or even discouraged by any law or

regulation, but protected by the First Amendment.

O. While CREF says that the current proposal is “nearly identical” to a 2011 proposal,

CREF’s own letters demonstrate lack of identicality.

CREF states that “the 2011 Proposal is nearly identical to the Proposal here” and that the 2011

no-action letter can therefore be used here. However, two of the arguments CREF used in its

2011 letter are not found in its 2013 letter, highlighting the substantial differences between the

two resolutions. 

CREF’s own letters illustrate that lack of identicality. While CREF mentions the SEC rule

regarding “micro-management,” no longer does CREF argue “micro-management” as it did in its

March 22, 2011 letter starting on pages 3 and 4. Nor does CREF argue that “the proposal

materially mischaracterizes CREF’s beliefs and policies.” 

The micro-management argument could well have been the basis for the SEC’s decision in 2011

that the proposal falls under the ordinary business exclusion. With CREF itself having omitted

this carefully constructed micro-management argument from its 2013 letter, the proponents of the

present resolution would respectfully ask the SEC to strike the CREF assertion that “the 2011

Proposal is nearly identical to the Proposal here” and any conclusion that may be drawn from that

material mischaracterization.

A new decision is appropriate on this new and different resolution. This particularly in view of

the vastly increased public debate on the matter since 2011 and the sharply increasing recognition

since then that the issue raises significant social and corporate policy issues. 

P. CREF’s assertion that the Proposal interferes with Quiet Diplomacy is illogical.

CREF asserts without logical foundation that “the Proposal interferes with CREF's longstanding

policy of engaging in ‘quiet diplomacy’ with portfolio companies, where appropriate, which is an

integral part of CREF's investment activities.” 

The coalition includes Adalah-NY, American Friends Service Committee (AFSC), Grassroots 90

International, Jewish Voice for Peace (JVP), The US Campaign to End the Israeli Occupation, and The US

Palestinian Community Network (USPCN).

NAACP v. Claiborne Hardware, 458 U.S. 886 (1982) 91

http://supreme.justia.com/cases/federal/us/458/886/case.html

Davis v. Cox, No. 11-2-01925-7 - Tr. of Decision (Thurston County Sup. Ct. Feb. 27, 2012) 

http://ccrjustice.org/files/02-27-12%20Davis%20v.%20Cox.PDF

Page 29 of 34
However, a careful reading of the proposal shows that it does nothing of the sort. CREF points to

no language in the proposal that restricts CREF from doing anything whatsoever it may want to

do on any subject, including quiet diplomacy. The resolution exclusively requests one action,

“end investment.” The resolution has no fixed date for taking this action, leaving the date to

decision by the Board. Thus, before, during, and after ending investment the resolution in no way

interferes with any other action CREF might wish to also take, including quiet diplomacy. The

proposal to end investment would obviously stop being applicable to a company in which quiet

diplomacy, or any other factor, succeeded in ending its support for human rights violations,

including support for Israel’s occupation. In view of the fact that ending investment can be done

without any “public confrontation,” the resolution in no way interferes with the CREF Policy

Statement on Corporate Governance quoted in the CREF letter to the SEC. 

Furthermore, CREF fails to explain how a vote by the shareholders on the resolution would

interfere with--rather than facilitate--its own informed dialogue and quiet diplomacy. After all,

the debate on this issue is swirling at the UN, in the halls of Congress, on college campuses, in

newspaper and internet articles, and in street protests around the world. 

Q. CREF expressly admits that its policy permits divestment. 

In addition, proponents respectfully ask the SEC to consider that CREF’s admission in section B

of its letter on page 6, that its policies and practices “may include divesting from companies in

appropriate circumstances,” puts to rest its argument that the resolution to “end investments”

would cause “public confrontation” and interfere with “quiet diplomacy.”

R. SEC rules preclude the Board from using its preference for “quiet diplomacy” to

exclude a resolution from a vote by shareholders.

Furthermore, even if the resolution somehow did interfere with quiet diplomacy, which it does

not, SEC rules providing an exception to the ordinary business exclusion preclude CREF from

using its preference for “quiet diplomacy” to exclude an appropriate resolution from a vote by

shareholders. In that case the preference for “quiet diplomacy” would have to give way to the

right of the shareholders to run their own company when the matter falls outside the ordinary

business exclusion because of widespread public debate and increasing recognition that the issue

raises significant social and corporate policy issues. CREF should not be allowed to avoid

following SEC rules that allow a vote by shareholders to take an action by asserting a preference

for a different approach.

S. Facts since 1992, facts since 2011, and facts not presented in 2011 but included here,

may require a different SEC conclusion.

Citing the 2011 CREF and a 1992 AT&T no-action letters, CREF states, “the Staff has

concluded that proposals concerning Israel and the West Bank do not raise significant policy

issues sufficient to trump the ‘ordinary business operations’ exclusion in Rule 14a-8(i)(7).”

Proponents acknowledge that in the 1992 AT&T no action letter the Staff wrote, “the policy issue

raised by the proposal, Israel's treatment of Palestinians, is not significant, and in fact is not related, to

the Company's business.” However, in its 2011 letter, the Staff wrote, “because our position is based

Page 30 of 34
on facts recited in your letter, different facts or conditions or additional facts or conditions may require

a different conclusion.” In the proposal itself and in today’s letter we offer such different facts or

conditions or additional facts or conditions upon which a different conclusion may be based. 

T. CREF asserts that the “essential objectives” have already been “substantially

implemented” but CREF misstates the “essential objectives” of the Proposal

In its March 22, 2013 letter to the SEC, CREF asserts that “the essential objectives of the Proposal

have already been substantially implemented.” However, CREF misstates the “essential objectives” of

the Proposal. Having misstated the proposal’s essential objective, CREF’s argument is off target. 

According to CREF: 

The Staff has stated that “a determination that [a] [c]ompany has substantially

implemented the proposal depends upon whether its particular policies, practices and

procedures compare favorably with the guidelines of the proposal.” [16] Significantly,

when applying the substantial implementation standard, a proposal need not be "fully

effected." [17] Rather, the Staff will grant no-action assurance when a company has

implemented the essential objective of a proposal, even in cases where the company's

actions do not fully comply with the specific dictates of the proposa1. [18]

CREF then discloses its view of the essential objective of the proposal. Please notice the ellipse that

CREF includes to omit seven words of the text of the resolved clause: 

In this case, the essential objective of the Proposal is to "end investments in companies

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

violations of human rights . . . ." 

CREF then asserts that: 

TIAA-CREF has already put in place policies and practices designed to address

human rights matters, which may include divesting from companies in appropriate

circumstances.

CREF quotes from its Policy Statement:

"[TIAA-CREF] 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."

Then CREF asserts in its March 22, 2013 letter to the SEC that:

The Policy Statement and CREF's practices thereunder address the Proposal's essential

objectives of ending investments in companies that, in CREF's judgment, substantially

contribute to or enable egregious violations of human rights. Accordingly, CREF

Page 31 of 34
already has developed and implemented a comprehensive policy that "compares

favorably with the guidelines of the [P]roposal" and that implements the essential

objective of the Proposal. Indeed, to the extent Proponent disagrees with the

implementation of that policy, such disagreement only highlights why the Proposal

should be excluded as infringing on CREF's "ordinary business operations" as

described above. 

Proponents now respectfully ask the Staff to consider the effect of the omission of the seven words

from the resolved clause in CREF’s determination of the “essential objective” of the proposal. Here is

the resolved clause in full:

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 resolved clause includes a general portion about companies that “substantially contribute to or

enable egregious violations of human rights.” The resolved clause also includes a specific portion,

“including companies whose business supports Israel’s occupation.” In its determination of the

“essential objective” of the proposal CREF omitted the specific portion. Having truncated the

resolved clause to omit mention of companies whose business supports Israel’s occupation, CREF did

not address the actual “essential objective” of the resolution, which is to “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 seven omitted

words are necessary to fully identify the “essential objective” of the proposal. 

In its March 22, 2013 letter to the SEC, CREF mentions no CREF “practice” that “substantially

implements” the actual “essential objective” of the resolution, to “end investments in companies that,

in the trustees’ judgment, substantially contribute to or enable egregious violations of human rights,

including companies whose business supports the Israeli occupation of Palestine.” 

CREF appears to be taking the policy of the SEC at least one step too far. As CREF noted, the Texaco

Inc. SEC No-Action letter of March 28, 1991 provides, “a determination that [a] [c]ompany has

substantially implemented the proposal depends upon whether its particular policies, practices and

procedures compare favorably with the guidelines of the proposal.” The Texaco No-Action letter

quoted by CREF provides no authority for what CREF does in this case, first truncating the proposal

and then determining whether its particular policies, practices and procedures compare favorably

with the truncated version. 

Even if CREF is correct that it need not “fully comply with the specific dictates of the proposal”

to achieve the status of “substantially implemented,” the proponents would respectfully ask the

SEC to consider that it must examine the resolved clause as a whole to correctly identify “the

essential objectives of the Proposal” and show “policies, practices, and procedures” that

“substantially implemented” them. 

For example, in its footnote 18 CREF cited Freeport-McMoran Copper & Gold, Inc. SEC NoAction Letter (pub. Avail. Mar. 5, 2003). Starting on page 3 of this letter, Freeport-McMoran

Page 32 of 34
Copper & Gold, Inc. presents a table showing each of the six parts of the resolution and showing

how the company is implementing each and every one of them.

Similarly, also in its footnote 18 CREF cited Kmart Corp., SEC No-Action Letter (pub. Avail.

Mar. 12, 1999). In paragraph *2 of this letter, Kmart Corp. presents the resolved clause in full

and then shows how the company has implementing the requested report. 

None of the letters CREF cites uses the term “essential objective of the proposal.” None of the

letters CREF cites shortchanges, rewrites, or truncates the resolved clause of the proposal to

arrive at an “essential objective” that is quite different from the resolved clause as written by the

proponents. 

Having cited Freeport-McMoran Copper & Gold, Inc. and Kmart Corp., CREF should be held to

the standard they each illustrate of fully disclosing the resolved clause in full and showing

practices and procedures implementing it. CREF failed to show that it met the standard those

companies illustrated of disclosing the resolved clause--not truncating the resolved clause. CREF

failed to show that it met the standard those companies illustrated of substantially implementing

the actual resolved clause. CREF failed to show any practices or procedures by which it has

substantially implemented the actual resolved clause. 

While there may be instances when the mere adoption of a policy is the “end goal,” this is not

such an instance. The stated goal of the resolution is not the adoption of a policy, but its

implementation, by the act of ending investment. CREF has pointed to no evidence that it has

taken any steps toward ending investment in companies that contribute to or enable egregious

violations of human rights, including companies whose business supports Israel’s occupation.

The SEC would be opening wide the door to allowing companies to truncate or otherwise distort

the resolved clause and to eviscerate the right of shareholders to vote on issues of significant

social policy if it were to accept CREF’s argument that the adoption of a policy as truncated is, in

itself, “substantial implementation” of that policy. 

Conclusion

The Proponents respectfully ask the SEC Staff to consider that CREF has not met its burden. 

As CREF recognized in its February 24, 2004 letter to the SEC, “The staff has determined that

shareholder proposals involve significant social policy issues if they involve issues that engender

widespread debate, media attention and legislative and regulatory initiatives,” and that such

proposals fall under an exception to the ordinary business exclusion. CREF misstates these

criteria in its March 22, 2013 letter concerning the present proposal, asserting instead

“widespread acceptance.” 

CREF’s assertion that the present proposal does not raise significant social and corporate policy

issues is contradicted by the deep-seated de jure and de facto discrimination and segregation

practiced under the Israeli occupation of Palestine, by the violations of international law, and by

the widespread debate and media attention given to such high-profile events as growing campus

Page 33 of 34
protest, national church letters and resolutions, and a Presidential visit to Israel and Palestine last

month. 

CREF’s assertion that the proposal is “nearly identical” to a 2011 proposal is contradicted by

different wording of the resolution and by the difference in CREF’s argument in 2013 from its

argument in 2011: CREF no longer argues “micro-management.”

Developments since 2011 show increasing public debate and recognition that the proposal

involves a significant social policy issue. 

CREF’s admission that its policy actually “may include divesting in appropriate circumstances”

contradicts CREF’s assertion that the proposal to end investment interferes with its policy or with

its preference for “quiet diplomacy.” The resolution does not preclude resort to such diplomacy,

and this internal policy cannot trump the shareholders right to vote if the issue meets the SEC

exception to the ordinary business exclusion. 

To fabricate its assertion that “the essential objectives of the Proposal have already been

substantially implemented” CREF had to omit part of the resolved clause. CREF is asking the

SEC to eviscerate the right of shareholders to vote on matters of significant social policy based

on truncating the resolved clause and without providing evidence of steps taken to implement the

policy actually stated in the shareholder resolution.

The request by CREF for a no-action letter should be rejected. Please let the CREF shareholders

consider and vote on this proposal.

If you have any questions, please do not hesitate to call. If the staff disagrees with our conclusion

that the Proposal may not be excluded from CREF’s 2013 Proxy Materials, we respectfully

request an opportunity to discuss the matter with the Staff prior to issuance of its formal

response, either individually or jointly with TIAA-CREF. Thank you very much. 

Sincerely,

s/James Marc Leas/ s/Barbara Harvey/

James Marc Leas, Esq. Barbara Harvey, Esq.

37 Butler Drive 1394 East Jefferson Avenue

South Burlington, Vermont 05403 Detroit, MI 48207

802 864-1575 313 567-4228

jimmy@vermontpatentlawyer.com blmharvey@sbcglobal.net

Page 34 of 34











April 29, 2013

Debbie Skeens, Esq.

Division of Investment Management 

Securities and Exchange Commission 

100 F Street, NE

Washington, D.C. 20549

Subject: Response on behalf of Steve Tamari and others to CREF letter from Thomas C.

Bogle dated April 22, 2013 regarding letter from Shurat HaDin (Israel Law

Center)

Dear Ms. Skeens:

This letter responds to Mr. Bogle’s letter of April 22, 2013, including the letter he

attached from Shurat HaDin (Israel Law Center). The Shurat HaDin attachment characterizes

proponents’ proposal as a “racist resolution” that is “contrary to public policy.” It argues that the

resolution calls for unlawful action under federal and state law. It urges TIAA-CREF to refuse to

present the proposal to shareholders for a vote and states a threat to sue both TIAA and CREF,

should CREF implement the proponents’ proposal.

I. A third party threat of litigation upon implementation of a shareholder proposal

presents no basis, in itself, for excluding the proposal from voting.

In his April 22, 2013 letter to the SEC on behalf of CREF, Mr. Bogle recognizes that

“[t]he proxy rules provide that an issuer may omit a shareholder proposal if the proposal would,

if implemented, cause the issuer to violate any state or federal law to which it is subject. ”

However, he does not assert that the proponents’ proposal, if implemented, would indeed cause

the issuer to violate any state or federal law to which it is subject. Instead, he writes: “We express

no opinion regarding the merits of the Israel Law Center's purported causes of action against

CREF, nor the potential outcome of any threatened litigation.”

Thus, CREF makes no assertion that the proposal violates any applicable law (even

Shurat HaDin does not assert violation of federal law—as further described herein below Shurat

HaDin merely states that “adoption of the BDS resolution might be a violation federal statute.”

Emphasis added). Instead, CREF asks the SEC to recognize a threat of civil suit against the

Company, should a shareholder proposal be implemented, as a ground for exclusion of that

shareholder proposal from voting.

But none of the proxy rules as they exist recognize such a third party threat of litigation as

cause for exclusion of a shareholder proposal from voting.

We respectfully submit that CREF’s argument is unsound. The mere threat of suit by a

third party is insufficient basis for issuance of a no-action letter. CREF admits as much by

making its request for reinterpretation of Rule 14a-8(I) exclusions. CREF makes this request

Page 1 of 8
without citing authority and without articulating or urging a rationale for such a reinterpretation

beyond complaining about the inconvenience and expense of being subjected to suit, and, most

seriously, without examining and assessing the threatened litigation on its merits.

The standard for excluding a shareholder resolution under Rule 14a-8(i)(2) requires more

than a mere threat of litigation by a third party. This is especially the case, as here, where the

issuer, CREF, has not asserted the existence of valid grounds for the allegation that

implementation of the resolution would be unlawful. In this case, the issuer, CREF, is not

making that assertion. To the contrary, CREF has stated that it takes no position on the merits of

the threatened suit. CREF has not asked the SEC to base its decision on the third party’s assertion

that implementation of the proponents’ resolution would cause CREF to be in violation of any

law. Instead, CREF is asking the SEC to issue a no-action letter on a ground not recognized by

rule 14a-8(i)(2): the inconvenience and expense of being subjected to suit, without assessment of

its merits.

The reinterpretation of SEC rules requested by CREF in response to Shurat HaDin’s

threat of suit is incompatible with CREF ’s duty to act in accordance with the requirements of

law. The reinterpretation of SEC rules requested by CREF is also incompatible with the Staff’s

duty to enforce its own rules, including 14a-8(i)(2), which sets a more rigorous standard for

exclusion. This rule plainly and unambiguously requires at least a showing that the proposal

“would, if implemented, cause the company to violate any state, federal, or foreign law to which

it is subject.” (Emphasis added.) The clear terms of Rule 14a-8(i)(2) cannot be ignored. It is

axiomatic that no agency or court is free to ignore the plain requirements of statutes or rules that

it is duty-bound to enforce, in the interests of weighing equities. In this letter we will show that

Shurat HaDin’s claims are unmeritorious and frivolous. If Shurat HaDin files suit, CREF has

judicial remedies for unmeritorious and frivolous claims.

Proponents respectfully ask the Staff to consider and make its determination based on the

actual legal standards that the SEC exists to uphold and enforce. Acceptance of CREF’s request

to allow a third party threat of civil action to influence or determine its decision would provide a

path for any third party adverse to a proposal to substitute itself for the SEC in the decision as to

whether shareholders could vote. Merely by threatening to sue the company if it were to

implement the proposal, a third party would be able to stop the shareholders from voting. That

would be the end of the actual standard set by Rule 14a-8(i)(2).

II. The proposal would not be unlawful, if implemented.

A. Boycott, Divestment, and Sanctions activity, including this shareholder

resolution, is protected by the First Amendment.

The First Amendment most strongly protects political speech. Such speech includes socalled “expressive conduct,” which is conduct that conveys a political message, such as a

politically symbolic sit-in, “die-in,” the erection of mock checkpoints and Separation Walls on

Page 2 of 8
campuses, and political boycotts and divestment actions.1

Boycott actions in which the goal is to advance the economic interests of the boycotters

are economic boycotts. Such boycotts are subject to regulation, such as the prohibition against

secondary boycotts under the Taft-Hartley Act. Political boycotts, on the other hand, fall within 2

the core of First Amendment protection as speech that “has always rested on the highest rung of

the hierarchy of First Amendment values.” Claiborne Hardware was a case that arose in the 3

context of the U.S. civil rights movement. In that case, the Supreme Court enforced this

distinction between economic boycotts and political boycotts, squarely holding that political

boycotts are within the core of the most protected free speech under the First Amendment.4

Unlike the boycott, divestment involves the exercise of a right that has not previously

been questioned: the right to sell one’s own property. In this case, the unquestionable right to 5

sell one’s own property also takes on the character of speech, as well, because it is motivated by

social and human rights goals and is intended to be understood as a political statement as well as

a political action. As illustrated in the cases cited at note 1, supra, such a political statement and

such a political action falls under constitutionally protected speech.

As detailed below, the federal law cited by Shurat HaDin has never been construed so

broadly as to reach political boycotts, because such broad interpretation or application would

cause the law to become void, as unconstitutional under the First Amendment. The state law

cited by Shurat HaDin includes an explicit exclusion for “[b]oycotts to protest unlawful

discriminatory practices,” providing an illustrative example of how political boycotts are

addressed in statutes that would risk being struck down as unconstitutional if they barred political

boycotts. See pages 4 – 5, below.

B. Shurat HaDin has identified nothing unlawful.

Shurat HaDin cites Section 8 of the Export Administration Act (“EAA”), 50 U.S.C. App.

2407 and New York State law to argue that the proposal would be unlawful, if implemented.

See, e.g., Virginia v. Black, 538 U.S. 343, 365-66 (2003) (cross burning); Texas v. Johnson, 491 US 397, 414 1

(1989) (burning of flag was expressive conduct protected by the First Amendment); University of Utah Students Against

Apartheid v. Peterson, 649 F. Supp. 1200, 1203-1207 (D. Utah 1986) (construction and maintenance of shanties on

university campus to protest apartheid in South Africa is constitutionally protected symbolic expression).

29 U.S.C. § 158(b)(4)(B). 2

NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913 (1982), quoting Carey v. Brown, 447 U.S. 455, 467 (1980); 3

see also Davis v. Cox, Case No. 11-2-01925-7 (Thurston County Sup. Ct. Feb. 27, 2012) (holding a co-op’s implementation of

a boycott ag ainst Israeli products was protected expressive conduct):

http://ccrjustice.org/files/02-27-12%20Davis%20v.%20Cox.PDF , at 16-18.

NAACP v. Claiborne Hardware Co., supra, 458 U.S. at 913-15 (1982); accord, Davis v. Cox, supra. 4

If the sale is done by a representative, that representative, such as TIAA-CREF, is often is subject to a fiduciary 5

duty of care in the transaction.

Page 3 of 8
While the SEC’s mandate is to administer federal law, and federal law is now predominant in

determining shareholder rights, Rule 14a-8(i)(2) requires consideration of both federal and state 6

law, and both are addressed below.

The EAA, 50 U.S.C. App. § 2401 et seq., imposed controls on access of foreign countries

to U.S. goods and technology for strategic military, security, and commercial purposes deemed to

be in the interests of the United States. Section 8 imposed both civil and criminal sanctions upon 7

U.S. parties cooperating with boycotts “fostered or imposed by a foreign country against a

country which is friendly to the United States and which is not itself the object of any form of

boycott pursuant to United States law or regulation.” 50 U.S.C. App. § 2407(a)(1); see also §

2402(5)(A).

The EAA was enacted in 1979, lapsed in August 1994, was reauthorized by Congress in 

November 2000, and then expired by its own “sunset” provision in August 2001. While in 8

effect, it was augmented by regulations administered by the U.S. Department of Commerce. In

the same month that the EAA expired, President George W. Bush asserted executive authority

under the International Emergency Economic Powers Act, “to the extent permitted by law,” to

maintain in effect the EAA regulations, including anti-boycott regulations. President Obama has 9

continued to renew those regulations, by executive order, to this day.

The EAA’s anti-boycott provisions apply explicitly and narrowly only to boycotts called

by foreign countries, and only to such boycotts that are called by one or more foreign countries

against a “friendly” country. By its terms, it creates no private cause of action. The authority to

enforce the criminal provisions are vested solely in the Attorney General, 50 App. U.S.C.A. §§

2410(a), (b), and civil enforcement authority is vested in the Secretary of Commerce. 50 App.

U.S.C.A. § 2410(c).

Thus, any threat of civil suit by Shurat HaDin against TIAA-CREF, for violations of the

EAA’s anti-boycott provisions, is a patently empty threat.

For the following reasons, these provisions plainly do not apply to the resolution at hand,

and the resolution therefore would not be unlawful under the EAA, if implemented:

1. Neither the expired statute nor the regulations promulgated to implement the statute and

continued in effect by Presidents Bush and Obama, encompass divestment. They

Since enactment of the Securities Litigation Uniform Standards Act of 1998, 15 U.S.C. §§ 77-78 “the federal 6

government has become the principal law-giver in determining what shareholders do and in defining the range within which

shareholders act.” R. Thompson, Preemption and Federalism in Corporate Governance: Protecting Shareholder Rights to

Vote, Sell, and Sue, 52 LAW AND CONTEMPORARY PROBLEMS 215, 233 (DUKE UNIV. 1999).

See 50 U.S.C. App. § 2402. 7

50 U.S.C. App. § 2419 and accompanying legislative history. 8

Executive Order 13222, 66 Fed. Reg. 44025 (Aug. 22, 2001). 9

Page 4 of 8
encompass boycotts, only. They are not interpreted or applied as encompassing

divestment. Shurat HaDin cites no authority warranting extension of these anti-boycott

provisions to divestment actions. Indeed, its argument is merely that “adoption of the

BDS resolution might be a violation of federal statute.”10

2. The request for divestment made in the resolution was not called by any foreign country

or countries. The present shareholder resolution was initiated by a campaign called the

“We Divest” campaign, which was conceived by a California-based U.S. nonprofit

organization called Jewish Voice for Peace. The campaign is currently administered by a

coalition of six domestic U.S. non-profit organizations, including Jewish Voice for Peace,

the American Friends Service Committee, Grassroots International, Adalah-New York,

the U.S. Palestine Community Network, and the U.S. Campaign to End the Israeli

Occupation. The primary resolution filer is a professor in St. Louis, Missouri named

Steven Tamari. He filed the resolution as an owner of CREF mutual funds, and the

resolution is supported by 200 other individual owners of CREF mutual funds.

3. The resolution is not directed against any country. It is directed “to 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." (Emphasis added.) Nor is it directed exclusively against

Israeli companies. There are Israeli companies that do not engage in such support, and

they are unaffected by the resolution. The one company that is singled out in the

supporting statement as exemplifying the sort of human rights violations at issue is

Veolia Environment, a French company. 

4. The focus of the resolution is not on commerce and trade, or technology, or on the profits

to be earned. The resolution provides a classic divestment action from “companies that, in

the trustees’ judgment, substantially contribute to or enable egregious violations of

human rights, including companies whose business supports Israel’s occupation."

Accordingly, the EAA would not apply to this resolution. This is in addition to the fact

that any attempt to apply the EAA’s anti-boycott provisions and regulations to this resolution

would be unconstitutional under the First Amendment.

Shurat HaDin relies as well on provisions of New York State’s anti-discrimination law.

See N.Y. EXEC. LAW §§ 296(6), (13), 300. Nowhere, however, does Shurat HaDin answer the

basic question of how a resolution directed against discrimination, segregation, and other forms

of unlawful treatment of Palestinians, on Palestinian territory, would compel “discrimination” on

any of the grounds prohibited by New York State’s non-discrimination law.11

Nor does Shurat HaDin answer the basic question of how divesting from the

Shurat HaDin letter, at p.3, emphasis added. 10

Section 296 prohibits discrimination in employment, public accommodations, public housing, real estate 11

transactions, education, etc.

Page 5 of 8
discrimination, inequities, and violations of human and legal rights of Palestinians, on

Palestinian lands, by the State of Israel, comes within the ambit of New York State’s

prohibitions against discrimination in New York State. Shurat HaDin cites no provision of New

York State’s discrimination law that asserts extraterritorial jurisdiction over the State of Israel

and its treatment of Palestinians in the occupied territories.

Shurat HaDin notes “statutory exceptions” to § 296(13)’s prohibition of boycotts,

blacklists, or other refusals to engage in business on prohibited bases, and dismisses them as “not

applicable here,” without quoting them. One of these exceptions excludes “[b]oycotts to protest

unlawful discriminatory practices.” But discrimination and segregation in housing, public 12

accommodations, access to public services, and education are all major issues to Palestinians

living under occupation, as detailed in our April 15 letter. Such discrimination and segregation th

would be unlawful under New York State’s nondiscrimination law, if it happened in New York

State, making the exclusion of boycotts protesting such inequities applicable, if the nondiscrimination law were itself applicable.

The factual basis for Shurat HaDin’s invocation of New York State’s non-discrimination

law, in its entirety, is the following on page 1 of its letter:

BDS is inherently biased, prejudicial and has an extremist agenda. Its activities

seek to harm and discriminate against Jewish people and inflict violence against

the State of Israel. Indeed, as the Anti-Defamation League put it, “the BDS

movement at its very core is anti-Semitic.”

It is not the Staff’s responsibility, as asked by Shurat HaDin, to put the BDS movement

on trial in assessing whether a specific shareholder resolution warrants a no-action letter. But if

the Staff had such a duty, Shurat HaDin has offered no supporting evidence. It has stated no facts

to substantiate any of its accusations. It states no facts to explain why a human rights agenda

amounts to “an extremist agenda” or how such a perceived “extremist agenda” violates New

York State’s non-discrimination law. It cites no legal authority for its accusations of

discrimination. It cites only the opinion of the Anti-Defamation League.

On the other hand, as proponents have shown in great detail in our April 15 letter, th

voluminous and ever increasing legal and expert authority exists for the proposition that many

practices used to enforce the Israeli occupation and expand the illegal and discriminatory

settlements indeed result in egregious human rights violations as well as violations of

international law. These authorities include numerous detailed, meticulously documented, and

factually laden reports by the United Nations, Amnesty International, Human Rights Watch, and

our own State Department in its 2012 country report on the occupied territories, referenced in our

accompanying letter of today’s date. These authorities include the 2004 opinion of the

International Court of Justice that Israel’s Separation Wall is unlawful under international law,

because more than 80% of it intrudes, often deeply, onto Palestinian lands, although Israel’s

claimed security interests could have been achieved just as well had the Wall been placed on

See § 296(13)(b). 12

Page 6 of 8
Israeli land.13

Shurat HaDin’s assertions that the resolution violates the New York State nondiscrimination laws rest on unsubstantiated accusations, unsupported by evidence or even any

factually specific accusations, and on a deep misunderstanding of federalism and the territorial

limits of New York State law. The accusations that the proposal would violate these provisions

of New York State law, if implemented, are frivolous.

With regard to the threat of private civil suit in the letter from Shurat HaDin, proponents

note that the letter states that “under pressure from the BDS movement, TIAA-CREF removed

Caterpillar Inc. from its Social Choice funds in 2012.” Thus, Shurat HaDin has had, since early

2012, more than a year ago, its stated ground for its suit against CREF. Thus, even if the SEC

were to accept Mr. Bogle’s request, the SEC may not actually save CREF from the expense of

defending against a suit.

The same logic used by Shurat HaDin to defame the present divestment resolution as

“racist” could have been used to call resolutions to divest from South African apartheid “racist,”

since the ruling power in South Africa was a distinct racial group: whites. Like resolutions

against apartheid in South Africa, proponents of the current resolution recognize that the human

rights mentioned in the resolution include equal rights for all. This is the same right that was

added to the U.S. constitution by the Fourteenth Amendment and that the Civil Rights Acts

protect. The argument that the present resolution is “racist” is frivolous.

What Shurat HaDin appears to be attempting is to outlaw criticism of Israeli misconduct

in its treatment of Palestinians. Toward that goal, it is aggressively attempting, through its threats

to sue not just CREF, but also hundreds of colleges and universities, to silence critics of Israel’s

practices and policies regarding Palestinians, their land, and their resources.

Shurat HaDin’s tactic in its April 10, 2013 letter to CREF and in its letters to colleges and

universities has been to recharacterize all criticism of Israeli treatment of Palestinians as antiSemitic. This tactic received national publicity in the furor that was raised when Brooklyn

College, in February 2013, scheduled a presentation on BDS, offering two speakers: Professor

Judith Butler and Omar Barghouti. Judith Butler is a Jewish philosophy professor at the

University of California at Berkeley and a member of the Jewish Voice for Peace advisory board.

Omar Barghouti is the Palestinian spokesperson to the U.S. and Europe for the Boycott,

Divestment, and Sanctions National Committee. Enormous pressure, including the charge of

anti-Semitism, was exerted against the College to cancel an event that was a straightforward

educational panel on a matter of great interest and importance to students. While the pressure

inspired several City Council members to threaten to rescind local funding for the College if it

failed to cancel the event, the College refused, and the controversy received widespread national

attention and strong support for the College’s position in the pages of many major newspapers,

International Court of Justice Advisory Opinion: Legal Consequences of the Construction of a Wall in the 13

Occupied Palestinian Territory, July 9, 2004. See 

http://www.icj-cij.org/docket/index.php?pr=71&code=mwp&p1=3&p2=4&p3=6

Page 7 of 8
including the New York Times.

14

SEC rules and free speech rights under the First Amendment protect the investment

community ’s right to vote on a proposal requesting the CREF Board to “end investment 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.”

Sincerely,

s/Barbara Harvey s/James Marc Leas

Barbara Harvey, Esq. James Marc Leas, Esq.

 1394 East Jefferson Avenue 37 Butler Drive

Detroit, MI 48207 South Burlington, Vermont 05403

313 567-4228 802 864-1575

blmharvey@sbcglobal.net jimmy@vermontpatentlawyer.com

See our letter of April 15, 2013, pages 8 – 9 and notes 24 – 26. 14

Page 8 of 8
April 29, 2013

Debbie Skeens, Esq.

Division of Investment Management

Securities and Exchange Commission

100 F Street, NE

Washington, D.C. 20549

Subject: Response on behalf of Steve Tamari and others to CREF letter from Phillip T.

Rollock dated April 22, 2013

Dear Ms. Skeens: 

Proponents respectfully ask the Staff to consider the following response to CREF’s April

22, 2013 letter from Phillip T. Rollock replying to our April 15 submission. 

I. CREF bases much of its case on its assertion that the 2013 proposal is “nearly

identical” to the 2011 proposal, but the two proposals differ.

CREF states: 

I. The Proposal is Properly Excludable for the Same Reasons Considered and

Accepted by the Staff in 2011.

In our March 22 letter, we observe that the Proposal is nearly identical to a

shareholder proposal submitted to CREF in 2011 (the "2011 Proposal"), where the

Staff agreed with our conclusion that the proposal could be omitted from CREF's

proxy materials because it dealt with a matter related to CREF's ordinary business

operations.

CREF’s central argument hinges on two assertions that are both wrong. First, CREF asserts that

the 2013 Proposal is “nearly identical” to the 2011 Proposal that the SEC Staff agreed could be

omitted from a vote. Second, CREF asserts that a decision to exclude the 2013 Proposal

necessarily follows “on the same grounds that the Staff considered and accepted in connection

with the 2011 Proposal.” 

Proponents will first show that CREF’s first assertion is inconsistent with the facts. Proponents

will list ten aspects of the 2011 Proposal that are not present in the 2013 Proposal. Several of

these aspects could have formed the basis for the SEC Staff decision in 2011. Thus, the

fundamental basis for CREF’s central argument evaporates. 

Proponents will then show that CREF’s logic is flawed because even if the 2013 Proposal was

exactly identical to the 2011 Proposal, in its letter to CREF in 2011, the SEC Staff told CREF

that it based its decision on the facts before it and that submission of different facts could make a

difference in its decision. 

Page 1 of 8
A comparison of the 2011 proposal with the 2013 proposal shows vast difference.

The 2011 proposal states: 

THEREFORE BE IT RESOLVED that the participants request CREF to engage

with corporations in its portfolio, such as Caterpillar, Veolia, and Elbit, that

operate on the West Bank and East Jerusalem with the goal of ending all practices

by which they profit from the Israeli occupation. If, by the annual meeting of

2012, there is no commitment to cooperate, CREF should consider divesting as

soon as market conditions permit.

The 2013 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 2013 proposal does not include any of the following items that are included in the 2011

proposal: 

1. “engage with corporations.” 

2. a specific time line for engagement and a specific deadline for transitioning from

engagement to consideration of divestment 

3. examples of specific corporations to be targeted for divestment 

4. corporate operation in specific locations, on the West Bank and East Jerusalem

5. any mention of “profit” 

6. “the goal of ending all practices by which they profit from the Israeli occupation”

7. engage with corporations “with the goal of ending all practices by which they profit

from the Israeli Occupation”

8. any geographical location at which specified companies profit from the occupation.

9. any conditional request

10. the conditional request, “If, by the annual meeting of 2012, there is no commitment

to cooperate, CREF should consider divesting as soon as market conditions permit.”

Other than the phrase “Israeli occupation” and the similarity between “divesting” and “end

investments,” the 2013 proposal has no overlap with the 2011 proposal. The 2013 proposal

requests that CREF “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.”

CREF states: 

Page four of our March 22 letter sets forth precisely how the substance of the

Proposal here is the same as the substance of the 2011 Proposal.

Page four has three bulleted points setting forth how CREF believes “the substance of the

Proposal here is the same as the substance of the 2011 Proposal.” 

Page 2 of 8
The first and second bulleted points are about the “whereas” clauses, that is, the supporting

statement. Thus, two of the three facts presented by CREF to show that the proposals are “nearly

identical” are in the supporting statement, not in the proposal. With reference to these two

bullets, CREF appears to be asking the SEC to exclude the proposal from a vote by shareholders

because of a similarity in the supporting statements rather than because of what the proposal is

requesting. Even if CREF is correct about a similarity here, CREF fails to explain why the

similarity of some language of the respective supporting statements is grounds for finding the

2013 proposal “nearly identical” to the 2011 proposal. The supporting statement is the

background information that shareholders may read to be able to assess the 2013 proposal.

CREF’s third bullet on page 4 states, “both call on CREF to divest from such companies.” CREF

is correct that the 2011 proposal called for divestment and the 2013 proposal similarly calls for

“end investment.” But CREF veers off in concluding that the proposals are therefore “nearly

identical.” The ten points listed above itemize how the 2013 proposal differs from the 2011

proposal. The 2013 proposal sets different criteria. It is not about where the companies are

located or what the companies get for themselves. It neither requires nor prohibits “engagement

with companies.” It focuses exclusively on asking the Board to “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.”

Responding to Proponent’s point about CREF’s failure to argue “micro-management” to support

its assertion that the 2013 proposal is “nearly identical” to the 2011 proposal, CREF notes that

Proponents did not show how the two proposals differ. Proponents have done so herein above.

CREF states: 

The 34-page Submission only briefly addresses this critical issue on page 29,

where it argues that the two proposals must be different because our March 22

letter does not recite verbatim the very same arguments made by us just two

years ago. Of course, rather than restating those arguments anew, our March 22

letter demonstrated how the Proposal is substantively the same as the 2011

Proposal, and included as an Exhibit all of the relevant correspondence with the

Staff in 2011.

Proponents’ April 15 letter merely noted that CREF’s March 22 letter had failed to set forth

anything in the present proposal that demonstrated one of the key points CREF had made in

2011: “micro-management.” Thus, CREF’s own letter appeared to demonstrate that CREF did

not itself think the 2013 proposal met the “micro-management” prong of the ordinary business

exclusion. If so, CREF’s own March 22 letter demonstrated that the 2013 proposal was not

“nearly identical” to the 2011 proposal. 

It is thus particularly notable that Mr. Rollock’s April 22 letter continues to fail to identify

anything in the 2013 proposal showing “micro-management.” Instead, Mr. Rollock’s April 22

letter asserts that the “micro-management” prong of analysis applicable to the present proposal

was covered in the “Exhibit of all relevant correspondence with the Staff in 2011.”

Page 3 of 8
A review of “the Exhibit of all relevant correspondence with the Staff in 2011" shows discussion

of “micro-management” on pages 3 and 4 of CREF’s March 22, 2011 letter to the SEC. But a

careful review of those pages shows nothing that can be applied to the 2013 proposal. None of

the facts CREF points to regarding “micro-management” in the 2011 proposal are applicable to

the 2013 proposal. None of the arguments CREF uses in this section can be applied to the 2013

proposal. Thus, CREF’s own letters demonstrate that the 2013 proposal is not “nearly identical”

to the 2011 proposal.

Most importantly, a reading of the 2013 proposal is consistent with the view that it does not

“micro-manage.” Having failed to provide even a single fact or argument to support “micromanagement,” either directly or by reference to its 2011 materials, CREF’s assertion that the

2013 proposal is “nearly identical” to the 2011 proposal collapses. 

Thus, CREF has not met its burden to support its assertion that the 2013 proposal is “nearly

identical” to the 2011 proposal. The 2011 no-action letter should not inhibit Staff’s review of the

2013 proposal. 

In its March 22 and April 22 letters, CREF does attempt to set forth, assert, and argue the other

prong of the ordinary business exclusion, namely, that the issue is “too complex” for shareholder

voting. But CREF does not explain why it is too complex for shareholders to vote on this issue

while college students, union members, food co-op members, and others are voting on the issue.

And while shareholders have voted on issues that are no more complex related to segregation and

discrimination in the United States and in South Africa. Proponents respectfully ask the SEC

Staff to consider that CREF has not met its burden to show why the issue is too complex for a

shareholder vote. 

In its letter regarding the 2011 proposal, the SEC staff stated, “Because our position is based

upon the facts recited in your letter, different facts or conditions or additional facts or conditions

may require a different conclusion.” 

Thus, even if the proposals were identical, the SEC staff stated that it may reach a different

decision based on different facts presented to it. Thus, even if the 2013 proposal is identical to

the 2011 proposal, CREF would not have met its burden to show that the proposal may be

omitted from a vote by shareholders absent some showing by CREF regarding the different or

additional facts or conditions presented by proponents in the April 15 letter. th

II. CREF does not dispute the additional facts presented in the April 15 letter th

Neither of CREF’s April 22, 2013 letters dispute any of the additional facts proponents presented

in our April 15 letter showing that the issue is the subject of widespread public debate, media th

attention, and increasing recognition that the issue raises significant social and corporate policy

issues. Proponents believe that the additional facts presented in the April 15 letter provide 1 th

Illustrating the widespread public debate and the increasing recognition that the issue raises significant 1

social and corporate policy issues, proponents respectfully call attention to four new developments since April 15:

(1) The 2012 US State Department country report for Israel highlights “institutional and societal discrimination

Page 4 of 8
adequate basis for the SEC Staff to support a vote by shareholders based on this exception to the

ordinary business exclusion. 

CREF acknowledges the purpose of presenting those facts at the beginning of a long paragraph in

its April 22, 2013 letter. CREF states: 

The Submission essentially argues that developments over the past two years

should cause the Staff to reverse course and treat this complex and highly

controversial geopolitical dispute as a "significant policy" issue. We disagree.

However, in the remaining portion of this paragraph CREF does not say why the developments

over the past two years presented in proponents’ April 15 letter are inadequate for the Staff to

treat “end[ing] investment 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” as a "significant policy" issue. Instead of addressing the

developments during the past two years described in proponents April 15 letter–developments

that could not have been considered by the SEC Staff in 2011 but may be considered now,

CREF makes statements unrelated to those developments:

The issue of Israeli-Palestinian relations represents one of the longest running

foreign policy disputes in contemporary history. The Staff has repeatedly, and

very recently, rejected arguments that the subject matter qualifies for the

significant policy exception to Rule 14a-8(i)(7). As we noted in our

correspondence with the Staff just two years ago, we believe this is a classic

against Arab citizens, in particular in access to equal education and employment opportunities.”

http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?year=2012&dlid=204363#wrapper

(2) The 2012 US State Department country report for the Occupied Territories highlights “Human rights problems

related to Israeli authorities included reports of excessive use of force against civilians, including killings; abuse of

Palestinian detainees, particularly during arrest and interrogation; austere and overcrowded detention facilities;

improper use of security detention procedures; demolition and confiscation of Palestinian property; limitations on

freedom of expression, assembly, and association; and severe restrictions on Palestinians’ internal and external

freedom of movement.”

http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm?dynamic_load_id=204365&year=2012#wrapper

(3) After an all-night debate involving hundreds of students, on April 18, 2013 the Student Senate of the Associated

Students of the University of California (ASUC), Berkeley, passed a resolution calling for divestment from

companies affiliated with Israel’s military. “ASUC Senate passes Israeli divestment bill SB 160, 11-9," The Daily

Californian, April 18, 2013 http://www.dailycal.org/2013/04/18/asuc-senate-passes-divestment-bill-11-9/. See also

“After all-night debate, Berkeley student senate calls on university to divest from 3 companies profiting from

occupation,” Mondoweiss, April 18, 2013 http://mondoweiss.net/2013/04/california-profiting-occupation.html.

Although a similar resolution had been adopted on the same campus in 2010, the student president vetoed that

resolution. This year’s resolution was not vetoed by the student president. He had campaigned for office on the

promise that he would not veto any divestment resolution.

(4) On April 21, 2013, 100 faculty at Columbia and Barnard signed an open letter to TIAA-CREF, demanding its

divestment from companies supporting the Occupation. See press release announcing campaign: 

http://columbiasjp.org/2013/04/21/pressconference/

Page 5 of 8
instance of a proposal that "prob[es] too deeply into matters of a complex nature

upon which shareholders, as a group, would not be in a position to make an

informed judgment." We are also very concerned that the one-sided and

inflammatory statements made in the Submission — including allegations of

segregation, and even apartheid — raise a concern that any debate likely to arise

from putting this issue in the 2013 CREF Proxy Materials would not be full, fair and

consistent with the spirit of Rule 14a-9.

CREF does not provide facts or argument disputing the many media reports provided in the April

15 letter showing discrimination, segregation, and apartheid in the occupied territories. Instead th

CREF resorts to disparaging the proposal without providing facts or even authority. 

CREF states that the submission contains “one-sided and inflammatory” language, including

references to segregation, “and even apartheid.” Proponents respectfully ask the SEC Staff to

consider that while references to segregation and apartheid may well be “inflammatory,” that would

only be because the practices of segregation and apartheid are themselves inflammatory. Such

reasoning as offered by CREF would lead to the bizarre outcome of excluding all disturbing social

issues from shareholder voting, since describing such issues may require the use of terminology that

CREF objects to. It is worth mentioning that articles in the Israeli media have frequently used such

terminology. 

Illustrating that the term “apartheid” is appropriate, former President Jimmy Carter wrote a book

entitled, Palestine Peace Not Apartheid, Simon & Schuster, 2006. In the book President Carter

said:

“Utilizing their political and military dominance, [Israeli leaders] are imposing a

system of partial withdrawal, encapsulation, and apartheid on the Muslim and

Christian citizens of the occupied territories. The driving purpose for the forced

separation of the two peoples is unlike that in South Africa–not racism, but the

acquisition of land (pages 189-190). 

As one of the possible options, he described: 

A system of apartheid, with two peoples occupying the same land but completely

separated from each other, with Israelis totally dominant and suppressing violence

by depriving Palestinians of their basic human rights. This is the policy now being

followed, although though many citizens of Israel deride the racist connotation of

prescribing permanent second-class status for the Palestinians. As one prominent

Israeli stated, “I am afraid that we are moving toward a government like that of

South Africa, with a dual society of Jewish rulers and Arab subjects with few rights

of citizenship. The West Bank is not worth it.” (page 215). 

On the next page he wrote that: 

Page 6 of 8
it will be a tragedy–for the Israelis, the Palestinians, and the world–if peace is

rejected and a system of oppression, apartheid, and sustained violence is permitted

to prevail. 

The terms actually used in the proposal are “discrimination” and “segregation.” These terms have

been used for more than half a century to describe certain conditions in our own country. Apartheid

was a term used in shareholder resolutions for many years regarding South Africa. These terms are

readily understood by Americans. In 1964 Congress enacted a civil rights law regarding these

practices, and this law continues to be needed and enforced to this day. These terms are actually

restrained descriptions of practices that the U.S. State Department described in its 2012 country

report (see footnote 1). 

CREF does not explain why it is “too complex” for shareholders to vote on whether their

company should “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” in view of the illegal and immoral acts--

including discrimination and segregation--that Israeli officials practice in the occupied

Palestinian territories. This is particularly a problem in view of the SEC specifically calling out

“discrimination matters” as an example of the type of issue that falls under the exception to the

ordinary business exclusion. 

Nor does CREF dispute applicability of the SEC staff criteria, “widespread public debate,” and

“increasing recognition that the issue raises significant social and corporate policy issue.” Nor

does CREF dispute that in its own 2004 letter to the SEC, CREF recognized “widespread debate,

media attention, and legislative and regulatory initiatives” as the SEC staff criteria. 

Having failed to dispute any of the facts that had not previously been considered by the SEC

staff, and having failed to dispute the SEC staff criteria, CREF has not met its burden of showing

that the exception to the ordinary business exclusion does not apply. 

III. In its argument regarding substantial implementation, CREF distorts the plain

meaning of the word “including” in the proposal.

CREF states: 

The Proposal includes a general request for the Board to "end investments in

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

egregious violations of human rights. . . ." It then states an example of such

companies with the words — "including companies whose business supports

Israel's occupation."

However, proponents ask the SEC staff to consider that CREF’s whole argument for

“substantial implementation” itself hinges on a mischaracterization of the plain meaning of the

word “including” in the proposal. CREF asserts that the word, “including” merely states “an

example.” 

Page 7 of 8
The Oxford English Dictionary defines “including” as follows: “comprise or contain as part of

a whole.” It gives as an example, “the price includes dinner, bed, and breakfast.” Would Mr.

Rollock agree with a Grover-type waiter who said that the dinner was a mere example and not

one of the three “essential objectives” of the price he paid? 

In an effort to make a somewhat different point, in his separate letter to the SEC, also dated

April 22, 2013, Mr. Thomas C. Bogle disagrees with Mr. Rollock. Mr. Bogle states, “the

proposal seeks divestment by CREF from ‘companies whose business supports Israel's

occupation.’" No thought by Mr. Bogle that divestment is a mere example. 2

In the section of CREF’s March 22 letter regarding “substantially implemented,” CREF

completely omitted the phrase, "including companies whose business supports Israel's

occupation." Now CREF follows a different tack. CREF distorts the word “including” to turn

“including companies whose business supports Israel's occupation” into a mere “example.”

Even Thomas C. Bogle, who represents CREF, does not agree with turning this phrase into an

“example.” The fact that CREF has resorted to such bogus stratagems indicates that CREF has

not met its burden to show that the proposal has been substantially implemented.

Conclusion

The request by CREF for a no-action letter should be rejected. Please 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/James Marc Leas/ s/Barbara Harvey/

James Marc Leas, Esq. Barbara Harvey, Esq.

37 Butler Drive 1394 East Jefferson Avenue

South Burlington, Vermont 05403 Detroit, MI 48207

802 864-1575 313 567-4228

jimmy@vermontpatentlawyer.com blmharvey@sbcglobal.net

A complete response to the letter from Mr. Bogle is attached in a separate letter. 2

Page 8 of 8
www.tiaa-cref.org

Phillip T. Rollock

Senior Managing Director and

Corporate Secretary

Tel: (212) 916-4218

Fax: (212) 916-6524

prollock@tiaa-cref.org

May 1, 2013

VIA HAND DELIVERY

William J. Kotapish, Esq.

Assistant Director

Division of Investment Management

U.S. Securities and Exchange Commission

100 F Street, N.E.

Washington, DC 20549

Re: College Retirement Equities Fund – 2013 Annual Meeting

Omission of Shareholder Proposal of Steve Tamari et al.

Dear Mr. Kotapish:

This letter responds to the submission from James Marc Leas and Barbara Harvey

dated April 29, 2013. CREF believes that the SEC Staff already has been presented with

sufficient information upon which to conclude that the Proposal is properly excludable

from CREF’s 2013 Proxy Materials. We write specifically to direct the Staff’s attention to

the Proponents’ argument that the Proposal has not been “substantially implemented.”

The Proponents appear to acknowledge that CREF has instituted processes for

divesting from companies that, in the judgment of CREF’s trustees, substantially contribute

to or enable egregious violations of human rights. The Proponents also appear to

acknowledge that CREF has actually divested from companies in accordance with these

processes, such as companies that have material business relationships with Sudan.

Nevertheless, the Proponents contend that CREF has not substantially implemented the

Proposal because CREF has not divested specifically from “companies whose business

supports Israel’s occupation.”

If one were to accept the Proponents construction of the Proposal, then in order for

CREF to substantially implement the Proposal, CREF would have to agree with the

Proponents that “companies whose business supports Israel’s occupation” were a subset of

companies that “substantially contribute to or enable egregious violations of human rights.”

This makes the Proposal remarkably different from other shareholder proposals that ask

funds to divest from companies that substantially contribute to egregious human rights
Page 2 of 3

violations, but that, in the end, defer to the judgment of the fund’s board.1 The Proponents’

construction of the Proposal shows a complete disregard for the actual judgment of CREF’s

trustees, and demonstrates that the Proposal really is designed to micro-manage CREF’s

day-to-day investment decisions by substituting the Proponents’ judgment for the judgment

of CREF’s board. As we state in our April 22 letter, “if the only way to ‘substantially

implement’ the Proposal is for CREF to divest from any company that supports ‘Israel’s

occupation,’ then we submit that such a result would clearly interfere with CREF’s

ordinary business operations, such that the Proposal may be excluded under Rule 14a8(i)(7).”

The Proponents’ April 29 letter also falsely states that “CREF does not dispute” the

myriad allegations and innuendo about Israeli/Palestinian relations that the Proponents have

made throughout this process. In fact, CREF has noted that much of the information in the

Proponent’s April 15 letter is wholly misleading and inaccurate.2 However, CREF is

determined not to become embroiled in a debate with the Proponents on Middle East

political matters. We remain deeply concerned that the Proponents are seeking to turn

CREF’s 2013 annual meeting into a forum for a protracted and inflammatory debate on

Israeli/Palestinian relations, which is wholly unrelated to CREF’s business as an investment

company.

For these reasons, we respectfully request that the Staff confirm it will not

recommend enforcement action if CREF excludes the Proposal from its 2013 Proxy

Materials.

Very truly yours,

Phillip T. Rollock

Senior Managing Director and

Corporate Secretary

College Retirement Equities Fund

1

See, e.g., Fidelity Funds, SEC No-Action Letter (pub. avail. Jan. 22, 2008) (denying noaction relief with respect to a shareholder proposal requesting “procedures to screen out investments

in companies that, in the judgment of the Board, substantially contribute to genocide, patterns of

extraordinary and egregious violations of human rights, or crimes against humanity”).

2

See Letter from Phillip T. Rollock to William J. Kotapish, Esq. (Apr. 22, 2013), at n.4.
Page 3 of 3

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
May 2, 2013

Debbie Skeens, Esq.

Division of Investment Management

Securities and Exchange Commission

100 F Street, NE

Washington, D.C. 20549

Subject: Response on behalf of Steve Tamari and hundreds of co-filers to CREF letter from

Phillip T. Rollock dated May 1, 2013

Dear Ms. Skeens: 

Proponents respectfully ask the Staff to consider the following response to CREF’s May

1, 2013 letter from Phillip T. Rollock replying to our April 29 submission. 

In its May 1 letter, CREF does not dispute that the proposal falls under an exception to the

ordinary business exclusion for matters of “widespread public debate and increasing recognition

that the issue raises significant social and corporate policy issues.” CREF presented no evidence

contrary to the voluminous evidence proponents presented in the April 15, 2013 letter showing

widespread public debate, vast media attention, and “increasing recognition that the issue raises

significant social and corporate policy issues.”

Nor has CREF disputed the criteria for this exception to the ordinary business exclusion. As

pointed out in the April 15 letter, CREF itself brought forth similar criteria in its 2004 letter.

Thus, even if the proposal would otherwise fall into the ordinary business exclusion, the proposal

would not be excluded because it meets the criteria of the exception to that exclusion.

Having failed to meet its burden to respond to the evidence showing that the present proposal

falls under an exception to the ordinary business exclusion, in its May 1, 2013 letter CREF

continues efforts to torture the proposal’s language to read out of it the phrase addressing the

Israeli occupation. 

In its March 22, 2013 letter, CREF truncated the proposal to eliminate the last 7 words and then

argued that it had “substantially implemented” the proposal as so truncated. 

In its April 22, 2013 letter, CREF asserted that the word “including” did not actually mean

“including.” Based on its assertion that the phrase, “including companies whose business

supports Israel’s occupation, merely “states an example,” CREF then argued that it had

“substantially implemented” the proposal as so modified.

In its May 1, 2013 letter, CREF says, “if one were to accept the Proponents construction of the

Proposal . . .” 

Proponents respectfully ask the SEC staff to consider that the language of the proposal is what it

is. Neither CREF’s nor the proponents’ construction of it changes the words actually used, or

their usual and straightforward meaning.

Page 1 of 3
CREF has nowhere in its filings made any statements or acknowledged any policies or actions to

implement the proposal as written, to “end investments in companies that substantially contribute

to or enable egregious violations of human rights, including companies whose business supports

Israel’s occupation.” CREF has not said or done anything even suggesting that it has considered

the Israeli occupation as a matter presenting human rights issues. There is no evidence in the

record that CREF is in substantial compliance with the resolution that is now before the Staff.

Therefore, CREF’s “substantial compliance” argument fails. 1

CREF suggests that general language is what is required for shareholders to avoid the "ordinary

business" exclusion, citing a 2008 Fidelity Funds letter, in which the SEC Staff declined to issue

a no-action commitment. The proposal in that case appeared to have language of a general

nature. CREF suggests that such general language is needed so as to defer to the judgment of the

board. But CREF’s suggestion does not logically follow, and CREF cites no authority for its

restrictive conclusion. A proposal written in such general language may not be sufficient to raise

an issue that is more specific and around which there is widespread public debate and increasing

recognition that the issue raises significant social and corporate policy concerns. 

Illustrating the fact that the SEC Staff has not required resolutions to be written in general

language, the SEC Staff refused to issue a no-action letter on a resolution calling for a 

report to shareholders by September 2013, at reasonable cost and omitting

proprietary information, PNC’s assessment of the greenhouse gas emissions

resulting from its lending portfolio and its exposure to climate change risk in its

lending, investing, and financing activities. PNC Financial Services Group

(February 13 2013). 

Under CREF’s reasoning, the resolution should have failed, as embroiling shareholders in the

company’s ordinary business. CREF’s reasoning would appear to instead require a resolution to

ask the trustees, in more general terms, for a report about polluting the environment, without

specifically mentioning greenhouse gas emissions. The SEC staff’s approval of general proposal

language in the 2008 Fidelity Funds letter does not ipso facto mean that a proposal falls into the

category of "ordinary business" by calling, for example, for a report about companies in which a

specific issue of widespread public debate is raised, such as greenhouse gas emissions. Or

supporting egregious human rights violations, including by companies operating in Sudan or in

South Africa, or companies whose business supports the Israeli occupation. 

CREF states that “the Proponents’ April 29 letter falsely states that ‘CREF does not dispute’ the

myriad allegations and innuendo about Israeli/Palestinian relations that Proponents have made

throughout this process.” 

 The "substantial compliance" rule, Rule 14a-8(i)(10), is a mootness-based exception to 1

a company's duty to allow voting on shareholder resolutions. It requires evidence that the

company is actually in substantial compliance with the resolution. See our discussion at pages

32-33 of our April 15 letter. th

Page 2 of 3
Actually, proponents stated, “Neither of CREF’s April 22, 2013 letters dispute any of the

additional facts proponents presented in our April 15 letter showing that the issue is the subject th

of widespread public debate, media attention, and increasing recognition that the issue raises

significant social and corporate policy issues.” The April 15 letter presents facts from th

authoritative sources, all with citations and hyperlinks for easy verification. 

CREF states, “In fact, CREF has noted that much of the information in the Proponent’s April 15

letter is wholly misleading and inaccurate.” However, CREF actually only points to one, and only

one, possible error at note 4 in the letter from Phillip T. Rollock dated April 22, 2013. Even this

one allegation of error is itself in error as shown by the article cited in proponents’ April 15,

2013 letter, “Israel cited in Caterpillar’s delisting from influential investment index,” published

by JTA. 

Finally, CREF states that it “does not want to become embroiled in a debate with Proponents on

Middle East political matters.” However, CREF cites, and proponents find, no SEC rule

prohibiting debate of a resolution before the shareholders for vote. 

CREF further states that “we remain deeply concerned that the Proponents are seeking to turn

CREF’s 2013 annual meeting into a forum for a protracted and inflammatory debate on

Israeli/Palestinian relations, which is wholly unrelated to CREF’s business as an investment

company.” However, an annual meeting is in fact a meeting at which shareholders may properly

raise policy issues, particularly where the issue is one of “widespread public debate and

increasing recognition that the issue raises significant social and corporate policy issues.” 

Proponents note that discussion on this topic has been going on at CREF annual meetings since

2011. At each of these three meetings, such discussion went on only as long as the Chair

continued to recognize such speakers. No speakers in support of ending investment in companies

whose business supports Israel’s occupation were unruly, rude, loud, or disobeyed time limits. 

The resort to allegations about proponents’ personal qualities and intentions made in this

paragraph implicitly acknowledge that CREF has no valid substantive arguments for excluding

the resolution from a vote by the shareholders. 

For all of the reasons stated in our letters, proponents respectfully ask the Staff to refuse to issue

the requested no-action letter. Please 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/James Marc Leas/ s/Barbara Harvey/

James Marc Leas, Esq. Barbara Harvey, Esq.

37 Butler Drive 1394 East Jefferson Avenue

South Burlington, Vermont 05403 Detroit, MI 48207

802 864-1575 313 567-4228

jimmy@vermontpatentlawyer.com blmharvey@sbcglobal.net

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