# NEW YORK CITY EMPLOYEES’ RETIREMENT SYSTEM, Plaintiff-Appellee, v. DOLE FOOD COMPANY, INC., Defendant-Appellant

> Court of Appeals for the Second Circuit · July 22, 1992 · 969 F.2d 1430

URL: https://www.frixlaw.com/law-library/cases/9483161

## Case

- **Full name:** Fed. SEC. L. Rep. P 96,910, 15 Employee Benefits Cas. 2339 New York City Employees' Retirement System v. Dole Food Company, Inc.
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** July 22, 1992
- **Citations:** 969 F.2d 1430; 15 Employee Benefits Cas. (BNA) 2339; 1992 U.S. App. LEXIS 16689; 1992 WL 170579
- **Precedential status:** Published
- **Opinion:** Concurrence by Pollack
- **Judges:** Miner, Walker, Pollack
- **Cited by:** 80 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9483161

## How later opinions describe it (automated extraction)

- finding appeal of order requiring company to include shareholder's proposal in proxy materials sent to shareholders before annual meeting moot, where company complied with order and failed to seek stay of order
- finding that a controversy does not evade review when “there should be ample time for full review of the case while it remains a live controversy”
- holding appeal moot where “[t]he injunction no longer controls the future activities of the parties and the consequences of the ... [order] cannot be undone”
- stating that a federal court lacks jurisdiction when a claim becomes moot
- finding the court lacked subject matter jurisdiction on account of the relief sought being secured in the interim

## Opinion text

MILTON POLLACK, Senior District Judge,
concurring:
I concur in the result reached by the Court. I dissented from the Court's order of May 28, 1992 which decreed merely that the appeal from the order of the District Court be dismissed as moot.
At that time it appeared to me that the District Court erred in disregarding the long line of SEC no-action letters stating that health care reform proposals identical or similar to the proposal at issue here may be excluded under Rule 14a-8(c)(7). The SEC’s interpretation of its own administrative regulations is entitled to great weight. See, e.g., Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 , 65 S.Ct. 1215, 1217 , 89 L.Ed. 1700 (1945) (stating that when construing an administrative regulation, “the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation”).
As I viewed it, NYCERS’ proposal called for no corporate decision to take or not take any action and, in fact, did not involve corporate policy at all, and therefore was an undisguised attempt to involve Dole in a *1436 national political debate. The SEC’s no-action letter and in general its position on shareholder proposals involving health care reform (consisting of no-action letters on 12 health care reform proposals submitted by shareholders to companies in the last two years) made this a classic ease for deferral to the SEC.
The Opinion on this appeal now concludes that “the order of the district court is vacated and the case is remanded with directions to dismiss the action,” thus implementing the usual procedure when a civil case becomes moot on appeal. The holding specifically states that the “legal question of whether Rule 14a-8 mandates inclusion of NYCERS’ proposal in Dole’s proxy statement therefore remains unresolved.”
I therefore now withdraw my dissent for practical reasons and concur in the result reached by the Court.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9483161. Public record. Not legal advice.