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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON,

D.C. 20549

May 10,2013

DIVISION OF

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 of Investment Management believes that its responsibility with respect to

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

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

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

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

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

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

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

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

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

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

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

proxy review into a formal or adversary procedure.

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

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

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

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

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

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

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

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

company's proxy material.

1:.'

Phillip T. Rollock

Senior Managing Director and

Corporate Secretary

Tel: (212) 916-4218

Fax: (212) 916-6524

prollock@tiaa-cref.org

FINANCIAL SERVICES

FOR THE GREATER GOOD•

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"), for CREF's 2013 annual meeting. 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

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

state

various

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.F.R. § 240.14a-8(i)(ll).

CREF expects to file defmitive Proxy Materials on or about June 10, 2013.

CREF has eight different investment accounts: the Stock Account, Social Choice Account,

Growth Account, Global Equities Account, Equity Index Account, Money Market Account,

Bond Market Account, and Inflation-Linked Bond Account.

www.tiaa-cref.org

("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."

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. 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").

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.

TIAA-CREF Investment Management, LLC, an indirect subsidiary ofTIAA, serves as CREF's

investment manager.

17 C.F.R. § 240.14a-8(i)(7); see College Retirement Equities Fund, SEC No-Action Letter (pub.

avail. May 26, 2011) ("2011 No-Action Letter"). A copy of the 2011 No-Action Letter and

related correspondence with the SEC staff is attached as Exhibit B.

We argued that this exclusion also applied to the 2011 Proposal, but the Staff did not need to

address the argument because the Staff agreed that the 2011 Proposal was excludable pursuant

to subparagraph (i)(7) of Rule 14a-8.

Page 2 of 8

ANALYSIS

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. 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

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

1998) ("Rule 14a-8 Release").

College Retirement Equities Fund, SEC No-Action Letter (pub. avail. May 3, 2004) ("2004

CREF Letter"); see also, Morgan Stanley Africa Investment Fund, Inc., SEC No-Action Letter

(pub. avail. Apr. 26, 1996) (noting that an investment company's ordinary business operations

include "the purchase and sale of securities and the management of the [t]und's portfolio

securities") and State Street Corp., SEC No-Action Letter (pub. avail. Feb. 24, 2009).

We note that both the 2011 Proposal and this Proposal were organized by the same advocacy

group, Jewish Voice for Peace ("NP"). Additional information abo)lt NP's efforts with regard

to both the 2011 Proposal and this Proposal here may be found at http://www.wedivest.org.

Page 3 of8

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

in proposals submitted by shareholders seeking divestment from companies that "contribute

to genocide, patterns of extraordinary and egregious violations of human rights, or crimes

against humanity" (the "Anti-Genocide Proposals"), where the Staff found that the ordinary

business operations exclusion did not apply. This argument completely ignores the actual

TIAA-CREF Policy Statement on Corporate Governance, at 4 (6th ed 2011).

See, e.g., Fidelity Aberdeen Trust, SEC No-Action Letter (pub. Avail. Jan. 22, 2008) (where the

proposal requested that the board "institute oversight procedures to screen out investments in

Page4 of8

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.

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

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").

See, e.g., Sudanese Sanctions Regulations, 31 C.F.R. pt. 538.

Sudan Accountability and Divestment Act of 2007, Pub. L. No. 110-174 (Dec. 31, 2007).

See 15 C.F.R. pt. 750 (anti-boycott regulations under the Export Administration Act); see also,

U.S. Department of Commerce: Bureau of Industry and Security, Anti-Boycott Compliance,

available at http://www.bis.doc.gov/complianceandenforcement/antiboycottcompliance.htm.

Page 5 of 8

significant policy issues sufficient to trump the "ordinary business operations" exclusion in

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

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).

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." 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.

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 TIAA19

CREF's existing practices in this area. TIAA-CREF's policies and practices are included

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").

See Texaco Inc., SEC No-Action Letter (pub. avail. Mar. 28, 1991).

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

See, e.g., Freeport-McMoRan Copper & Gold, Inc., SEC No-Action Letter (pub. avail. Mar. 5,

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

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

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

Letter (pub. avail. Mar. 12, 1999).

From the Proposal: "TIAA-CREF believes that when companies focus on being socially

responsible, they may reduce risk and thereby achieve better fmancial performance"; and

Page 6 of 8

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

Materials.

If the Staff disagrees with our conclusion that the Proposal may be excluded from

CREF's 2013 Proxy Materials, we would appreciate an opportunity to discuss the matter

with the Staff prior to issuance of its formal response. As required by Rule 14a-8(j), six

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

(ESG) criteria, including a commitment to honor human rights."

Page 7 of 8

copies of this letter and its attachments are enclosed and a copy is being forwarded

concurrently to the Proponent.

Very truly yours,

Phillip T. Rollock

Senior Managing Director and

Corporate Secretary

College Retirement Equities Fund

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

Page 8 of 8

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

8 Oakdale Lake

Glen Carbon, IL 62034

Enclosure: Shareholder proposal

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:

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";

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;

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.

Exhibit B

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

Page 1 of2

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.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.

Accordingly, the Division will not recommend enforcement action to the

Commission if CREF excludes the proposal from its proxy materials in

reliance on Rule 14a-8(i)(7). 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.

http://www.sec.gov/divisions/investment/noaction/20 11/cref-levitt050611-14a8.htm

3/22/2013

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.

Sincerely,

Michael L. Kosoff

Branch Chief

Attachment

cc: Aaron Levitt

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-levitt05061114a8.htm

Home I Previous Page

Modified: 05/06/2011

http://www.sec.gov/divisions/investment/noaction/20 lllcref-levitt050611-14a8.htm

3/22/2013

William J. Mostyn, Ill

Senior Vice President and

Corporate Secretary

Tel: (617) 788-5969

Fax: (617) 788-5959

wmostyn@tiaa-cref.org

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

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.

The Submission misunderstands the nature of the "substantially implemented"

exclusion

The Submission relies on a narrow and technical reading of the exclusion, which would

require precise execution of each literal term of a proposal. On the contrary, the exclusion

www.tiaa-cref.org

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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

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.

To the extent the Submission mischaracterizes the Proposal, and the proponents in fact seek specific investment

activities and decisions rather than review, the Proposal impermissibly interferes with the conduct of CREF's

ordinary business operations and is excludable under the "ordinary business" exclusion of Rule 14a-8(iX7).

American Telephone & Telegraph Co., SEC No-Action Letter (avail. Jan 30, 1992) (emphasis added). In this

case, after the staff issued its letter finding that the issue was not significant and that the proposal could be

excluded, the proponents appealed the decision to the Chairman of the Commission asking for formal review and

reversal by the Commission. The Commission declined to review the Division's position. See Staff Reply Letter

to Dr. William Pierce, Chairman ofThe National Alliance (February 20, 1992).

Page 2of 5

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.

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

specifically relating to CREF. The fact that the staff has required different proposals

submitted to other companies with different business operations to be included in those

Exchange Act Release No. 40018 (May 21, 1998), cited in Staff Legal Bulletin No. 14 (CF) dated July 13, 2001

available at http://sec.gov/interpsllegal/c!Slb 14.htm

/d. at§ III (see discussion of the no-action position taken in Cracker Barrel, SEC No-Action Letter (avail. Oct. 13,

1992)).

Page 3of 5

companies' proxy materials does not create a general "human rights" rule that trumps all

other exclusions and circumstances. 7

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

Fund's Board institute oversight 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."

The Submission erroneously implies that TIAA-CREF has expressed these views. TIAA-CREF has not expressed

a view on these issues.

Exchange Act Release No. 40018 at § III.

We also note that Mr. Neuhauser states that the twenty-four identical proposals submitted were ')ointly submitted"

and "co-sponsored" by all individual proponents, and for that reason requests that all of the proponents be named

in the proxy materials. We did not interpret the submissions in this manner, but would defer to Mr. Neuhauser's

Page4 of 5

Yours truly,

h~f~~~

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

characterization of a joint submission. If the staff agrees that the Proposal may be omitted, this request would be

moot.

Page 5 of 5

PAUL M. NEUHAUSER

Attorney at Law (Admitted New York and Iowa)

1253 North Basin Lane

Siesta Key

Sarasota, FL 34242

Email: pmneuhauser@aol.com

Tel and Fax: (941) 349-6164

April21, 2011

Securities & Exchange Commission

100 F Street, NE

Washington, D.C. 20549

Att: William J. Kotapish, Esq.

Assistant Director

Division of Investment Management

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).

I have reviewed the Proponents' shareholder proposal, as well as the

aforesaid letter sent by CREF, and based upon the foregoing, as well as upon a

review of Rule 14a-8, it is my opinion that the Proponents' shareholder 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.

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.

14, Section B.l5 (July 13, 2001).

A virtually identical fact situation was considered by the Staff in connection

with the denial of a no-action request in ConocoPhillips (February 22, 2006). In

that letter, the Staff stated:

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

Corporate Governance statement makes reference to human rights, there is

ABSOLUTLY no claim made by CREF in its letter that it has ever ENGAGED

with ANY portfolio company about human rights issues in the Occupied

Territories (or indeed on any human rights matter other than on the Sudan, a

country with respect to which the United States law prohibits investment). In 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)

The Commission has stated that the "ordinary business" exclusion of Rule

14a-8(i)(7) is inapplicable if the proposal raises an important social policy issue.

See Release 34-40018 (May 21, 1998) (proposals that relate to ordinary business

matters but that focus on "sufficiently significant policy issues ... would not be

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 ofAmerica 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

other words, it requests only engagement with the portfolio companies. As far as

the CREF no-action letter of March 25,2005 is concerned, the proposal at issue

there failed to raise a significant policy issue since the underlying actions by the

portfolio companies did not implicate any significant policy issue whatsoever.

Finally, the AT&T, Hewlett-Packard and Motorola no-action letters cited 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

Palestinian property, and physically assaulted Palestinians. . . Israeli

authorities arrested numerous settlers but convicted few ....

Israel maintained onerous restrictions on the movement of Palestinians in the

West Bank... It removed some closure obstacles, but more than 500

remained ... .

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

www.freedomhouse.org.)

The U.S. Department of State publishes annually a Report on Human Rights

Practices in every nation around the globe. Its 2010 Country Report for the

Occupied Territories included the following in its introduction:

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.

RULE 14a-8(i)(3)

The primary reason that the Staff issued Staff Legal Bulletin 14B (September

15, 2004) was to end the practice of registrants raising insubstantial objections to

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

of the Company's letter and footnote 32 to the aforesaid quote. As stated in the

very Reuters article cited by CREF, Ambassador Rice stated to the Security

Council that the "US view is that the Israeli settlements lack legitimacy". That

same article relied upon by the Company also stated that the position of Brittan,

France and Germany is that the settlements "are illegal under international law".

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

cc: William J. Mostyn, III

Sidney Levy

Barbara Harvey

William J. Mostyn, Ill

Senior Vice President and

Corporate Secretary

Tel: (617) 7&8-5969

Fax: (617) 788-5959

wmcx.1Yil@tiaa-cref.org

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

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

Mr. Levitt's proposal, CREf intends 1u exclude all of !he other proposals on the grounds that they are duplicative." See

Rule !4a-S(ii(tl).

CREf expeds to file detinitJW i"rolt)' Material~ on or abbut June 10, 2011.

WWN.tiaa-cret.org

One. Beacon Sln!e.l. Boston. MA 0?1 08

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){ 10) 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.''

CREF bas etgbt d!Hmrtl ill"i.:>'tfllelll acoolll!l$ !he Stock Acooui\" Soctal Cb<l~~:e Accolilll. Growtll 1\ccQUJll Glomi

Equities Acooum. Equity lnde~ A~:«~unt. Money Mllfket A~ttltU!t, Bond Market Account. and lni!lltioii-Linked Bol\d

Account

Tli\A.CREI' Investment Management.l LC a $Ub:iidil.ll)' ofTlAA. scrve1> as CR!3f's mVI!littmnl msnag.:r

Page2 of 10

fl.

ANALYSIS

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

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,

Morgan Sunlcy Africa Investment Fund. Inc., SEC N<l-AI:tion Leiter {Pilh avail. Apr 26. 1996) ("Morgan Stanley

l..etti:r~) 1no!ing !llat an tttv~>lment clllllpany·s ordtmcy bul.inm tJpcrll.llons intlude ''the purcht!Sc and sale of securities

and tire mamgemcnt or tlre 1flund ·s portfolio !I:Cutltles"); Slate Stn."et Corp_ SI::T N.o-ActiOO Letter (pub avlul. feb. 24.

2009).

The Sla(l' ltn!i corn:Ufrcd on nlliTICffius occasions that Cl\dusion ofa proposal 1llll)l be proper where lhc proposal allempls

to sul)jm t«hnic.al aspectS. of a rompany·s ordinruy business oper&ttons !.() slulreholdcr ovcrstgllt See. e.g .. Merck &

L:o , lnc., SEC NIN\ctJon Letter (~l;o. liVll•l Jan 23, 1997)

Pege 30f Hl

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

TIAA-CREF communicates directly (using ••quiet

CREF•s investment activities.

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 wdJVCMWilt 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

preference is m engage pnvately with portfoliQ companies wltcn we perw••e sbonoomlng:~ in the1r gqvema!ll.v, or

envifonmeolal and social IJ('hcres and Pf11Ctices trult we bl:hc:ve trnpaciS their perftm'tlant~~. Thi$ stn~tcgy of 'qutct

diplomacy' reOccts our belief and pa.~l cxperil:ncc that lllf!lrmed dialvguc with lwlllll m"'mbcrs Wid ~'liior c:..~'U!Ive~<.

rather than public i!lmft\Wa\1~ will most Hl\cly lead to a mutW!l!y produ~'tlve outcome."

As discuss~d below. bec~~USC nM"CREf alrll3dy has a delilli!d IJ('Iiey and stral<1J!Y tin the engagement of portfl!l!O

companies with regard to ~rntc gowrnance Wid social responsibility issUI.'ll, the Propn.o;a! may al~o be omittcU under

Rule l<la-S{i)(Ult lbc"~ub!;liln!ial implcmenwuon~ e.w~\ISlun.

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

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.

types of management functions

·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,

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

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

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).

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.lJvail. l'eb. 2. 2001).

See

United

Nauons

Human

RigflL~

Couocil

Repoo

l.l

2007)

ll.tlj>.t!news blll:.e<). uk/2/shrux.>d/l!sp/bJipdfsi.l2_03_01_un_sudnn.pd[

.'5/M ulso, lnt'l Bushl!$$ M:tehines Corp__ SEC No.ACiiun l..till.'>f (p~.>b avail. Mat 2.. 2il00) (pcrmlttmg the exclusion ora

pr\JfJ0$1llfult ltuf)ll\late$ the polincal ptOCI!li£, rather than ~oclaltssues).

P~5ot11J

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.

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

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

·~t>

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].

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

SEC Release No 34-20091.48 FR 35082 (Augustl6, J9S.ll

See. e.g•• Freeport-McMw.m C<!pp.'f 8;. GQld, !m:.. SEC No-Aclioo l.t.'lter (pub ').Vail Mllr 5. 2003) (et:~m:mty alr~y

bad implemented a human rights policy, even though lbc· specific clemellb of the pulK:y did oot me..-t tho" $harebulder

propuncnt's obj~ettves): see al'o. AMR Cl!f'P., SEC No-Aclion Lcucr (pub. avail April 17, 2000)~ ~ee also. Kmnrt

Curp~ SEC No-Acti!m L~'i.icr (pub, avail. l\.tar. 11. 1999)

AS slated m !he supportillQ statement of the ProptJSBt. CR.E'F inve>ts m cumpames ·'that prolil from their complicity tn

human ngh!S abuses and violations oflaw... ·•

Page sot 10

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/

As pan of tlw engagement process. TIAA·CREF is a memoor of an ¢~pert ~roup organized by the Umted Nl!tions Glolla.l

Compact and till: United Natioru; Pnrn:iples for ReSJ)Oilsible lrwesunellt The group published the "Guidance c,m

m•a.Joble

Areas.,"

Risk

lllgb

and

Conthct·Affccted

&sirn:ss

Respol'lliible

This guid;uu:c assists

htqrl/wv.w,lillgloball»mpact.org!docsllssoes_dlll:ll'eal."l.:'_and_BusallllSIIJGuidance. RH. pdf

o:ompan.ies in implementing responsible busmess prlll:tices in o:ontlicNIITect\."d areas, whith, ahlluugh nol spe<:ifitaily

rcferel1ced, M>U.ld include !he West Bank and Gm. Veotia. i:llle of the companie~ 1dentifwd in the f>rop!lSllt is a!!IO a

nJW•lx:r of the ellpi:tl l!fbliJi.

rights violations. after sustained efforts at dialogue have failed and divestment can

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

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).

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.

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 govemmene 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

hUp: l/www.tiaa-cref.me/pobl ic/aboutipress:tabol.ll:_usltelem5/pressrcleasc3l J.html

See StatTLegal Bullctin 148 (Sept 14, 2004)

For example•. til¢ Proposal i!SSllrt.' IIJat mainlammg and expandil\g [$n!d's ··occupauun of the West SaaiC involves

'"violati~W ofluw:· 1tichlding •·unlawfulllllldexpropliauon·· Compare action by the United Slilh!$ Dn frtt.ay February

18, 2011, vet,)i!lg a Unltce Nations Security Council resulutionthat would have dc<:lllred lsru~li settlements in the West

Bank. illegal. !it¥ (fS, v¥(tt.e.! U.N. drqft condtmning lsraeft ;n~trlemenls. .tupra :tmre19

Page 8 Of 10

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:

''TIAA~CREF 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 14a~8(iX3) 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.

Cons1der. in cnnncction ll.ith the difllcu1tie$ sueh a presentation would~~ on CREF. the S(l.callcd Negmpontc

Doctrine. set forth by John Ncgropullb:. lbnner OS. Ambassadl>r lQ the United Nations. ln 2002, the Ambassador stilted

that the United States will oppose Security COUncil resolutions ronc~rnin& the Isuroli-Pah:stinian tonftict lhat co!ldcmn

lsml without al~o oondemnlnglerrQrist groups, See United States Miss'o(ln to the tinned :>!atit:IIIS, Ncgropoote DQctnno:

on. Security U>urn:il Rc>ollltJOll oo tlie Middle E;ut \Oct. 6, 2003}.

Page e of 10

!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 bei~ fol"\varded concurrently to

the Proponent.

Yours truly,

k/41£, }A~~

"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

Page10 ot iO

CD'S

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 6l7~788-S959

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 y~r 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 Jand

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 Jand

WHEREAS,. CATERPIUAR 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

from the lsraeH occupation. If, by the annual meeting of20l2, there is no commitment to

cooperate, CREF should consider divesting BS soon as market c:ondltions permit.

02111/2011

06:38

GlS9Gl541~

cos

PAGE €14/€14

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

[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·

J.mmes..jn-Wcst·banJa::area-c·trtpte<Hn·2QlQ·l.~)!?2.1§

fSl Precisely Wrong: Gaza Civiliant lOlled by lmeli Drone-Launched Missiles. Human

Rights Wa~lltJun 30, 2009. A~ 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 J~l:

cij.org!dock.er!inde&.pbp?pr=7l&tode=mwp&p1=3&p2=4&p3=6&case=l31 &k=Sa

f71 Human Rights Wateh, Separate and Unequal, Dec 2010.

b!m://wW"t_.hm;6lfglgytWf~!Usti9t!Q.

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.

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: “W e are unable to concur

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.

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.

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

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.”

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 SEC2 (the “2004 letter”), cited by CREF in its March 22,

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.9 The

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."6 The Division

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),

http://www.sec.gov/divisions/investment/noaction/crfuller050304.pdf

Similarly, Fidelity Aberdeen Street Trust (2008) admitted in its letter to the SEC that (unsuccessfully)

requested a no-action letter: “W e 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.9 Shareholder proposals involve significant social policies if they involve issues mat [typo in

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,

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.

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

argument CREF used regarding the 2004 proposal are inapplicable with regard to the present resolution.

Page 4 of 34

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

Israel continues to maintain and even accelerate settlement of the West Bank and East

Jerusalem,7 even after the UN General Assembly in December 2012 recognized Palestine

as a non-member state, with only eight countries voting “nay”;8

The U.S. officially opposes continued Israeli settlement activity;9

International Court of Justice. Advisory opinion: Legal Consequences of the Construction of a W all in the

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,

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 W est Bank from the south," . . . “The Palestinians bitterly oppose the project as it

effectively cuts the occupied W est 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

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

W ashington, DC, Question Taken at the June 16, 2011 Daily Press Briefing, June 16, 2011

Q: W hat 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. W e 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 W est 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-joint-

Page 5 of 34

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

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

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

The United Methodist Church,13 the Presbyterian Church (USA),14 and the United Church

of Canada15 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;16

HRW : Israel/W est Bank: Separate and Unequal, 2010 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,

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),

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

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:

http://www.pcusa.org/news/2012/7/7/boycott-added-presbyterian-tools-middle-east-peace/

“The W orking Group on Israel/Palestine Policy” – (Unofficial text of minutes approved by General

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:

http://www.fidh.org/IMG/pdf/trading.pdf

Page 6 of 34

Recent developments further show widespread public debate and increasing

recognition that the issue raises significant social and corporate policy issues.

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

In December 2012 the UN voted to admit Palestine as a non-member state.

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."

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.

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.

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: 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

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,

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

http://www.cnn.com/2011/US/09/16/new.york.dueling.posters/index.html

Page 7 of 34

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,”21 shows how the public debate about the Israeli settlement issue is so

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.”

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 W estchester 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

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

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:

“‘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.”24 The New York Times dedicated an editorial in defense of the

talks.25 As the Times reported,26 the lectures took place on February 7, 2013 with protests

pro- and con- outside.

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 W elcome Critics of Israel,” by Kate Taylor, The New York Times,

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

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

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

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/W orld/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

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.30 Although that resolution did not pass, the church voted

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.”32 At the church’s biennial

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,33 and was

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.34 In the end, an overture to boycott settlement

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

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:

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,

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:

http://www.pcusa.org/news/2011/9/12/mrti-recommends-pcusa-divestment-caterpillar/

“Assembly committee recommends divestment,” July 4, 2012:

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

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

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

http://www.mcc.org/stories/news/mcc-us-board-acts-peace-through-its-investments

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

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 http://www.nationalmecha.org/

Page 11 of 34

•

Divestment resolutions had passed earlier at a number of student bodies: Wayne State

University (2003),40 the University of Michigan at Dearborn (2005, 2006, and 2010).41 In

2009, after more than 800 students, professors, and alumni at Hampshire College signed a

petition calling for divestment related to the Israeli occupation,42 the College divested

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.”43 The large public controversy generated by Hampshire College’s decision

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.44 In fact, a

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.45 The resolution passed the Student Senate and was later vetoed

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

W SU Student Council Votes for Divestiture. Arab American News, April 26, 2003

http://4.bp.blogspot.com/_EbIZBUj7TAg/S9GHXfkzyeI/AAAAAAAAAIg/38lsFh4ofi0/s1600/W SU.bmp

“Dearborn student government pushes 'U' to divest funds from Israel,” The Michigan Daily, March 11,

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

http://www.boston.com/news/local/breaking_news/2009/02/hamphire_colleg.html

“W ar of W ords on Investments in Israel,” Inside Higher Ed, February 13, 2009:

http://www.insidehighered.com/news/2009/02/13/hampshire

No Final Decision on UC Berkeley Israel Divestment Bill after Marathon Meeting, April 15, 2010:

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:

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,”46 In November 2012, the student government at the University of

California, Irvine resolved unanimously (16-0) to divest from Israel’s occupation.47 A

similar vote passed at UC San Diego in March 2013.48 A parallel resolution first passed at

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).51 Sweden’s largest pension funds divested from Elbit the following year,

following a recommendation by its Ethical Council.52 The AP Swedish national pension

funds divested from Elbit as well (2010).53

“A Resolution Regarding California Assembly Bill HR 35,” University at California Student Association

http://ucsa.org/document/view/236

UC Irvine student leaders urge UC to divest from some companies. LA Times, November 14, 2012:

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 W est Bank ties. LA Times, March 14, 2013:

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:

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 W A Superior Ct. Feb. 23,

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:

http://online.wsj.com/article/SB125197496278482849.html

“Swedish pension giant divests from Elbit,” Jerusalem Post, March 31, 2010

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:

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.

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

do57,” President Obama further said:

"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:

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,”

December 12, 2012 http://www.nzsuperfund.co.nz/news.asp?pageID=2145831983&RefID=2141742545

“Obama tells Israelis that settlement activity hurts peace,” Reuters,

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

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,

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.

“W hat 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.

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,”60 by Israeli

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

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?,”61 by Ben Ehrenreich, further illustrates the widespread public debate on the

issue. That a lengthy feature on life under the occupation is the cover story shows that the issue

has reached center stage.

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 clause63 states:

[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’,”64 describes a 39 page UN Human

Rights Council report65 and illustrates recognition of these issues:

“Is This W here the Third Intifada W ill Start?,” by Ben Ehrenreich, New York Times Magazine on March

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 W ar,” Geneva, 12 August

1949, http://www.icrc.org/ihl.nsf/FULL/380?OpenDocument

Convention (IV) relative to the Protection of Civilian Persons in Time of W ar. Geneva, 12 August 1949.

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

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

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,”66 January 31, 2013:

“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

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 Court67 that in article 8(2)(b)(viii) makes a war crime: “The

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 Conventions68 (signed but not yet ratified by the US;

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 subparagraph69 of Additional Protocol I states:

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.

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)70 for

Rome Statute of the International Criminal Court 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

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

Victims of International Armed Conflicts (Protocol I), 8 June 1977,

http://www.icrc.org/ihl.nsf/W ebList?ReadForm&id=470&t=com

US Department of State, “Country Reports on Human Rights Practices for 2011, Israel and the occupied

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

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

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.