Company Name: Ford Motor Co.
Public Availability Date: March 2, 2004Document Sections:
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER [INQUIRY LETTER]
January 15, 2004 Securities and Exchange Commission
Division of Corporation Finance
Office of the Chief Counsel
450 Fifth Street, N.W.
Washington, D.C. 20549 Re: Omission of Shareholder Proposal Submitted by Mr. Carl Olson
Ladies and Gentlemen: Pursuant to Rule 14a-8(j) promulgated under the Securities Exchange Act of 1934,
as amended (the "Act"), Ford Motor Company ("Ford" or the "Company")
respectfully requests the concurrence of the staff of the Division of
Corporation Finance (the "Staff") of the Securities and Exchange Commission (the
"Commission") that it will not recommend any enforcement action to the
Commission if the shareholder proposal described below is omitted from Ford's
proxy statement and form of proxy for the Company's 2004 Annual Meeting of
Shareholders (the "Proxy Materials"). The Company's Annual Meeting of
Shareholders is scheduled for May 13, 2004. Mr. Carl Olson, a shareholder of Ford (the "Proponent"), has submitted for
inclusion in the 2004 Proxy Materials a proposal and supporting statement
recommending that the Company publish a "Scientific Report on Global
Warming/Cooling" (see Exhibit 1; the "Proposal"). The Company proposes to omit
the Proposal from its 2004 Proxy Materials for the following reasons:
The Proposal is excludable under Rule 14a-8(i)(7) because it deals with
matters relating to the Company's ordinary business operations.
The Proposal is excludable under Rule 14a-8(i)(3) because it is contrary to
Rule 14a-9, which prohibits materially false or misleading statements in proxy
soliciting materials.
The Proposal is excludable under Rule 14a-8(i)(6) because it is beyond the
power of the Company or its Board of Directors to implement.
The Proposal Deals with Matters Relating to the Company's Ordinary Business
Operations Rule 14a-8(i)(7) permits a company to omit a proposal if it deals with a matter
relating to the company's ordinary business operations. In Exchange Act Release
No. 34-40018 (May 21, 1998), the Commission stated: The policy underlying the ordinary business exclusion rests on two central
considerations. The first relates to the subject matter of the proposal. Certain
tasks are so fundamental to management's ability to run a company on a
day-to-day basis that they could not, as a practical matter, be subject to
direct shareholder oversight. *** However, proposals relating to such matters but focusing on sufficiently
significant social policy issues (e.g., significant discrimination matters)
generally would not be considered to be excludable, because the proposals would
transcend the day-to-day business matters and raise policy issues so significant
that it would be appropriate for a shareholder to vote. 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 shareholders, as a group, would not be in a position to make
an informed judgment. The Company agrees that Company plans for addressing global warming issues
present a significant social policy issue that would not normally be excludable
(see American Standard Companies, Inc. (March 18, 2002)). The Company does,
however, take issue with the Proposal's requirement that the Company make the
determination of whether global warming or cooling exists. Under "1. What
Temperatures" of the Proposal, the Proponents requests the Company to report on
various temperatures and states that "[t]his temperature measurement would be
the one used to determine whether there is `global warming' or `global
cooling'." The Company is in the business of manufacturing, selling, and financing
automobiles. It has the obligation to comply with laws and regulations made by
governmental entities at the local, state and national level in the United
States and elsewhere around the world. The Company's decision whether or not to
question or confirm a particular determination on whether global warming or
cooling exists, whether made by a government, private organization, or other
group or person, is a governmental affairs/scientific issue that is strictly
within the ordinary business of the Company. There may be a myriad of reasons
why a company accepts a policy decision or other determination on certain
matters. It would cause havoc for companies to have such decisions subject to
examination by shareholders. This is just the type of micro-management by
shareholders that Rule 14a-8(i)(7) was meant to prevent. See Duke Power Company
(March 7, 1988); Carolina Power & Light Co. (March 30, 1988); Pacific Telesis
Group (February 21, 1990); and E.I. DuPont de Nemours and Company (March 8,
1991). Additionally, the Company has limited resources and must decide how best to
expend those resources in order to create value for shareholders. In order to
implement the Proposal, the Company would have to expend a tremendous amount of
capital to hire a team of scientists, purchase scientific instruments, and
conduct a myriad of tests in order to determine whether or not global warming or
cooling exists. Governments and private institutions all over the world have
expended billions of dollars studying this exact issue. The Company believes
that the decision of whether to expend additional capital to either confirm or
disprove previous scientific studies regarding global warming or cooling is an
ordinary business decision that is fundamental to management's ability to run
the Company on a day-to-day basis. The Company does not believe such a decision
to expend scarce capital for such purpose involves a significant social policy.
Accordingly, Ford believes that the Proposal may be omitted under Rule
14a-8(i)(7). (See Chrysler Corporation (December 18, 1987) where the Staff
concurred in the exclusion of a proposal that required Chrysler to expend
capital to conduct research to determine the feasibility of producing and
marketing electric cars as relating to ordinary business operations under then
Rule 14a-8(c)(7).) As in Chrysler, the Proposal requires Ford to conduct an
intensive study of the existence or non-existence of global warming or cooling
that would require the allocation and expenditure of considerable corporate
assets. The Proposal clearly concerns the allocation of funds for researchan
ordinary business operationand may be omitted from Ford's Proxy Materials under
Rule 14a-8(i)(7). The Proposal Violates the Proxy Rules (Rule 14a-8(i)(3) and Rule 14a-9)
Rule 14a-8(i)(3) permits an issuer to omit a shareholder proposal from its proxy
materials if the proposal is contrary to the Commission's proxy rules, including
Rule 14a-9, which prohibits false or misleading statements in proxy soliciting
materials. The Proposal is susceptible to differing interpretations and likely
to confuse the Company's shareholders. The Staff has regularly permitted
companies to omit proposals from their proxy materials on the grounds that any
action ultimately taken upon implementation of the proposal could be different
from the actions envisioned by the shareholders voting on the proposal at the
time their votes were cast. See, e.g., Organogenesis, Inc. (April 2, 1999)
(concurring in exclusion of a proposal that recommended procedures for the
nomination and election of directors because the proposal was vague and
ambiguous). See also Hormel Foods Corporation (November 19, 2002); Wal-Mart
Stores, Inc. (April 2, 2001); McDonald's Corporation (March 13, 2001); and
Comshare Incorporated (August 23, 2000). The Proposal is vague, ambiguous and susceptible of various interpretations.
Among the important questions left unanswered by the Proposal are:
Under "1. What Temperatures," the Proposal does not state whether the Company
would be required to take multiple temperature readings at different times of
the day over a given time period, different locations, and/or different
altitudes? How many different times, locations, and altitudes would suffice? The
Proposal also does not state a time frame for comparing temperatures? The
Proposal states that whatever temperature measurement the Company comes up with,
it will be used to determine the existence of global warming or global cooling.
In order to determine whether or not global warming or cooling exists, one would
have to compare temperatures over a certain period of time. The Proponent does
not suggest a time frame from which to make this determination. Would one year,
fifty years, 100 years or 1,000 years be appropriate?
Under "2. What Atmospheric Gases," the Proposal does not state what severity
of global warming or cooling should be used to determine the effect on the
listed gases. Should the Company assume a change of 0.01 degrees Fahrenheit, 2
degrees, 5 degrees or more?
Under "6. What Costs/Benefits," the proposal does not state how such costs and
benefits are to be determined? Is it strictly an economic analysis or should the
Company take into account societal costs and benefits? Should the Company take
into account the possible extinction or proliferation of certain species of
animals as a result of global warming or cooling? Should the Company take into
account the aesthetic value of the possible loss or creation of forests,
islands, deserts, lakes, ponds, rivers, or glaciers? While the Company appreciates the importance of the issue of global warming, it
believes that it is not possible for the Company or its Board to implement the
Proposal since it is impossible to understand the specific actions or measures
required in the event the Proposal were to be adopted. Likewise the Company's
shareholders are being asked to approve matters that essentially provide no
guidelines as to what steps the Company is expected to take. Accordingly, the
Company believes that the Proposal may be omitted under Rule 14a-8(i)(3) as a
violation of Rule 14a-9. The Proposal is Beyond the Power of the Company to Effectuate
Rule 14a-8(i)(6) permits a company to exclude a proposal if it is beyond the
power of the company to implement. The Proposal is beyond the power of Ford to
implement due to its inherent vagueness and due to the fact that the Company
does not presently have the scientific resources to implement the Proposal
(discussed above). In Anheuser-Busch Companies, Inc. (February 9, 1993), the
Staff ruled that a charitable contributions proposal which requested the company
to make contributions to only those little league organizations that give each
child the same amount of playing time as practically possible could be excluded
under Rule 14a-8(i)(6). Similarly, in General Motors Corporation (March 9,
1981), the Staff did not recommend action with respect to General Motors'
exclusion of a proposal that it ascertain the number of avowed Communists,
Marxists, Leninists and Maoists on the faculty and in the administration of any
particular school before making a donation to the school without guidance as to
how to determine which persons fell within the prohibited group. As noted above,
the Proposal is replete with ambiguities and thus presents the same impediments
to implementation that justified the no-action determinations in Anheuser-Busch
Companies, Inc. and General Motors Corporation. Due to the Proposal's inherent vagueness and ambiguity, it is beyond the power
of the Company to implement. The Company does not have the ability to produce a
report when it is not given sufficient guidance as to the issues outlined in the
immediately preceding section. Accordingly, the Company believes that the
Proposal may be omitted under Rule 14a-8(i)(6). Conclusion
For the foregoing reasons, it is respectfully submitted that the Proposal may be
excluded from Ford's 2004 Proxy Materials. Your confirmation that the Staff will
not recommend enforcement action if the Proposal is omitted from the 2004 Proxy
Materials is respectfully requested. In accordance with Rule 14a-8(j), the Proponent is being informed of the
Company's intention to omit the Proposal from its 2004 Proxy Materials by
sending him a copy of this letter and its exhibits. Seven copies of this letter
are enclosed. Please acknowledge receipt by stamping and returning one copy in
the enclosed self-addressed stamped envelop. If you have any questions, require further information, or wish to discuss this
matter, please call Jerome Zaremba (313-337-3913) of my office or me
(313-323-2130). Very truly yours, /s/
Peter J. Sherry, Jr. Enclosure
Exhibits cc: Carl Olson (via Federal Express) [INQUIRY LETTER]
February 12, 2004 Chief Counsel
Office of Corporation Finance
Securities and Exchange Commission
450 Fifth Street NW
Washington, D. C. 20549 Re: Ford Motor Company stockowner proposal
Dear Sir: This is in reply to a letter to you dated February 9, 2004, from Peter J.
Sherry, Jr., Secretary of Ford Motor Company regarding my proposal for action at
the upcoming annual meeting. The concerns that Mr. Sherry brought up do not present any substantial defects.
1. Ford has for a long time been making studies and pronouncements about "global
warming". It should be obvious that Ford has a competent scientific staff that
has adopted some set of temperature measurements upon which to base these
studies and pronouncements. Otherwise Ford could not be representing
intelligently whether global warming or cooling were occurring. My proposal's
section on "What Temperatures" merely asks for a description of what
measurements that Ford is using in its studies about global warming. It could
not be construed to require Ford to go out and conduct a separate set of
temperature readings around the world. If Ford has been confident in using the
temperature data from outside sources, my proposal does not in any way question
that judgment, nor does it call for any other temperature measurements to
determine what temperatures are involved. It repeatedly defers to Ford staff's
judgment. 2. There is no attempt to change the substance (or plain meaning of) my
proposal. If any clarifying language were needed, I would be happy to include
it. 3. Mr. Sherry says that somehow my proposal requires that Ford, in the proposed
report, include items other than my (a), (b), and (c) for "What Temperatures",
such as the methodology and the external sources. This additional background is
entirely within Ford staff's discretion to bolster its explanation of how it
views global warming/cooling. 4. Mr. Sherry complains about my use of the future tense. The proposal is aimed
at the future, i.e., after the 2004 annual meeting. That's why the "would be"
verb is used. It is entirely possible that Ford would be using the same set of
temperature readings in the future as it is using today; but again that is a
scientific judgment for Ford's staff to make. 5. There is no "micro-management" involved in the proposal, including the
section on temperatures. The items of (a), (b), and (c) are very basic
information in order to see how "global" the global warming/cooling data are.
Ford is not required to make any of the measurements. Presumably its external
sources provide their methodology, which would at minimum include the (a), (b),
and (c). 6. Mr. Sherry again misstatements my proposal, "...Ford is apparently to conduct
all of the other tests to issue the reports that are called for in the
Proposal." This objection was not made in his previous letter. Again, the
Proposal language is clear that Ford's staff has discretion to use whatever
sources and methods it wants. It already is doing so in its current studies and
pronouncements. So, it is not something that Ford could not do in a report to
the stockowners. 7. Mr. Sherry asserts, "Any determination of whether Ford has the scientists,
statisticians, instruments, and capital necessary to conduct all of the tests to
confirm whether or not global warming or cooling exists is an every day business
decision that should not be subject to shareholder review." Again, my proposal
does not require Ford "to conduct all of the tests...", and it certainly does
not require a "determination of whether Ford has the scientists..." If Ford has
not had the scientific capacity to make its many studies and pronouncements on
global warming/cooling in the past several years, then this is a significant
admission about the integrity of those studies and pronouncements. But I don't
think that Ford's staff is incompetent in this area, and I don't think Mr.
Sherry intended to impugn Ford staff's competence. 8. There is nothing vague, ambiguous, or susceptible to various interpretations.
The proposal gives Ford's staff appropriate discretion to include what it thinks
best about each area. We stockowners just want to know what Ford thinks about
the six noted subject areas in the proposed report. We want the benefit of
Ford's own scientific insight into this significant economic, business, social,
and political issue. You are urged not to allow the intended omission, and let the stockowners to
decide for themselves. Mr. Sherry has acknowledged that Ford's stockowners have
previously been allowed to vote on proposals on various aspects of the global
warming/cooling subject. Ford's management may have objected to their inclusion,
but apparently they were fit for stockowner review. My proposal asks for an
objective presentation without trying to prejudice the outcome of the proposed
report. Sincerely, /s/
Carl Olson Cc: Mr. Peter J. Sherry, Jr. [INQUIRY LETTER]
February 20, 2004 Securities and Exchange Commission
Division of Corporation Finance
Office of the Chief Counsel
450 Fifth Street, N.W.
Washington, D.C. 20549 Re: Omission of Shareholder Proposal Submitted by Mr. Carl Olson
Ladies and Gentlemen: Reference is made to the letter dated February 12, 2004, of Mr. Carl Olson (the
"Proponent") in response to the letter of Ford Motor Company ("Ford" or the
"Company") dated February 9, 2004 and the No-Action Request of Ford dated
January 15, 2004, regarding the Proponent's shareholder proposal requesting the
Company to produce a scientific report on global warming/cooling (the
"Proposal"). The Proponent has again asked the Division of Corporation Finance
(the "Staff") of the Securities and Exchange Commission ("SEC") to deny Ford's
No-Action Request. Similar to Mr. Olson's January 26 letter, Ford views the Proponent's latest
letter as another attempt to recast the Proposal in an attempt to avoid
no-action relief. Ford does not wish to take more of the Staff's time to respond
point-by-point to Mr. Olson's letter. We believe that the arguments made in our
No-Action Request of January 15, 2004 and our letter of February 9 provide ample
reasons to exclude the Proposal on the grounds that (i) it is so inherently
vague and ambiguous as to be misleading in violation of proxy rules under Rule
14a-8(i)(3) because it is contrary to Rule 14a-9; (ii) it deals with matters
relating to the Company's ordinary business under Rule 14a-8(i)(7); and (iii) it
is beyond the power of the Company or its Board of Directors to implement under
Rule 14a-8(i)(6). We respectfully request the Staff to concur in the Company's
No-Action Request of January 15, 2004. If you have any questions, require further information, or wish to discuss this
matter, please call Jerome Zaremba (313-337-3913) of my office or me
(313-323-2130). Very truly yours, /s/
Peter J. Sherry, Jr. cc: Mr. Carl Olson [INQUIRY LETTER]
January 26, 2004 Chief Counsel
Division on Corporation Finance
Securities and Exchange Commission
450 Fifth Street NW
Washington, D. C. 20549 Re: Ford Motor Company stockowner resolution
Dear Sir or Madam: This is in response to a letter dated January 15, 2004, to you from Peter J.
Sherry, Jr., Secretary, Ford Motor Company, in which he indicates the
management's intention to omit my "Resolution on a Scientific Report on Global
Warming/Cooling" from the proxy materials for the upcoming annual meeting of
stockowners. He cites three reasons for omission. None are valid, and the
resolution should not be omitted. 1. Mr. Sherry asserts that the resolution requires Ford to make a determination
on whether "global warming" or "global cooling" has occurred or is occurring,
and that Ford is incapable of doing so. However, Ford already makes numerous
statements to the stockowners and the public about "global warming" or "global
cooling" and we must presume that Ford's scientists have an informed basis upon
which to make such statements. If Ford thinks that some matters about global
warming/cooling are ambiguous or are beyond the six areas that my resolution
specifies, it can simply include such discussion in the report. My resolution
intentionally provides Ford with discretion to include "any other information
that Ford staff deems relevant". Mr. Sherry erroneously states, "In order to implement the Proposal, the Company
would have to expend a tremendous amount of capital to hire a team of
scientists, purchase scientific instruments, and conduct a myriad of tests in
order to determine whether or not global warming or cooling exists." On the
contrary, my resolution item "1. What temperatures" merely asks Ford explicitly
to state what temperature basis it uses to define and discuss "global warming"
and "global cooling", and does not ask for Ford itself to conduct the
measurements. Mr. Sherry admits that "global warming issues" are well within significant
social policy issues for stockowners intelligently to consider. A responsible
discussion on any issue must start out with the definition of termsa concept
that is solidly grounded in all law. Otherwise we stockowners would have no way
of knowing what Ford was talking about when it issues statements, provides
testimony, or makes decisions on "global warming issues". This is not
"micro-management". 2. Mr. Sherry asserts that the resolution is somehow "vague, ambiguous, and
susceptible of various interpretations." Under "1. What temperatures" Mr. Sherry implies that my resolution states that
"the Company would be required to take multiple temperature readings at
different times of the day over a given time period, different locations, and/or
different altitudes." This is not the case. It does not require Ford itself to
take any temperature readings. I assume that Ford currently is not taking any
such temperature readings in its discussion of "global warming issues", but
nevertheless feels completely confident in some other source's temperature
readings to make responsible statements to the stockowners and public. My
resolution merely asks Ford to tell the stockowners what method that such the
outside source(s) use to report on the various global temperatures under
discussion. Mr. Sherry does not argue that these outside sources refuse to
provide Ford clear and simple methodology descriptions of their temperature
measurements. Under "2. What Atmospheric Gases" Mr. Sherry complains that the resolution does
not specify the amount of temperature degrees that should be used. The
resolution explicitly leaves this up to the discretion of Ford's scientists:
"Relevant ranges of percent increases/decreases shall be determined by Ford
staff." Depending upon whatever ranges that Ford's staff decides upon for each
of the atmospheric gases, then the resulting temperature change would be shown.
It's not the other way around in this section about "global warming/cooling"
that the change in temperature is causing a change in the atmospheric gases. If
Ford is saying such is the case, then I would be willing to amend my resolution
to state that it use increments of 0.1 degree Fahrenheit. Under "6. What Costs/Benefits" Mr. Sherry complains: "Is it strictly an economic
analysis or should the Company take into account societal costs and benefits?"
My resolution says what it means in item 6: "economic costs and benefits". My
resolution does not call upon Ford to report on any "societal costs and
benefits" or "extinction or proliferation of certain species of animals" or
"aesthetic value of the possible loss or creation of forests, islands, deserts,
lakes, ponds, rivers, or glaciers". Ford's staff can make whatever analyses it
want on these aspects as it wishes, but they are not a required part of my
proposed report. 3. Mr. Sherry asserts that the resolution cannot be implemented by Ford because
it is too vague (paragraph 2 above) and Ford "does not presently have the
scientific resources to implement the Proposal". As stated above, the resolution
does not call upon Ford itself to take the measurements of temperatures. Rather,
it notes Ford already has staff which evaluates global warming/cooling for
statements to the stockowners and public, for providing testimony, and for
making business decisions. My resolution does not call for anything beyond the
power of Ford easily to effectuate. As you can see, Mr. Sherry's arguments are completely without merit, and I urge
you not to allow the intended omission. Sincerely,
/s/ Carl Olson
cc: Peter J. Sherry, Jr. [INQUIRY LETTER]
February 9, 2004 Securities and Exchange Commission
Division of Corporation Finance
Office of the Chief Counsel
450 Fifth Street, N.W.
Washington, D.C. 20549 Re: Omission of Shareholder Proposal Submitted by Mr. Carl Olson
Ladies and Gentlemen: Reference is made to the letter dated January 26, 2004, of Mr. Carl Olson (the
"Proponent") in response to the No-Action Request of Ford Motor Company ("Ford"
or the "Company") dated January 15, 2004, regarding the Proponent's shareholder
proposal requesting the Company to produce a scientific report on global
warming/cooling (the "Proposal"). The Proponent has asked the Division of
Corporation Finance (the "Staff") of the Securities and Exchange Commission
("SEC") to deny Ford's No-Action Request. With regard to the Proponent's assertions in his letter of January 26, it seems
that Mr. Olson is belatedly recasting the Proposal in an attempt to avoid
no-action relief. If Mr. Olson was merely asking that Ford explicitly disclose
the temperature methodology used by external source(s) that Ford used to define
global warming or cooling, the Proposal could have directly asked Ford to
disclose that information. Indeed, Mr. Olson states in his January 26 letter
that the Proposal "notes Ford already has staff which evaluates global
warming/cooling for statements to the stockowners and public, for providing
testimony, and for making business decisions." A thorough review of the
Proposal, however, indicates no such acknowledgement by Mr. Olson of Ford having
staff that performs those functions. We request that the Staff maintain its
consistent policy of not allowing revisions under Rule 14a-8(i)(7). See Kmart
Corporation (March 12, 1999), The Warnaco Group (March 12, 1999) and Chrysler
Corporation (February 18, 1998). Likewise, the Proposal makes no mention of Ford disclosing the methodology used
by external sources, nor the identity of the sources, it allegedly used to
determine its statements and policies regarding global warming. If Mr. Olson was
truly interested in Ford disclosing the methodology used by external sources in
determining whether or not global warming exists, would he not also want those
sources identified so that their credibility could be judged? Additionally, the
Proposal states under "1. What Temperatures" that "[t]his temperature
measurement would be the one used to determine whether there is `global warming'
or `global cooling'." (emphasis added.) If Mr. Olson wanted to know the
methodology that Ford had used to determine its stance on global warming, why is
the quoted statement cast in the future tense? Would not the past tense be more
appropriate? The future tense indicates clearly that Mr. Olson expects Ford to
conduct the temperature measurements. Despite the Proponent's contentions, Ford maintains that a plain reading of the
Proposal clearly requests the Company to conduct temperature measurement tests
to determine the existence of global warming or global cooling. To the extent
the Proponent now asserts otherwise, we view that as additional evidence of the
Proposal's vagueness and ambiguity of the type Rule 14a-9 was intended to
exclude. If, however, we take the Proponent at his wordthat the Proposal is merely
asking that Ford disclose the methodology used by external sources that the
Company has used in determining whether global warming existsthen the Proposal
represents the type of shareholder micro-managing that Rule 14a-8(i)(7) was
intended to prevent. A company cannot be required to disclose the methodology
used to make every day business decisions. To analogize, the safety of Ford
products is a significant issue to the Company and its shareholders. It is
undeniable, however, that the methodology used to determine the appropriate
safety devices on a vehicle is an every day business decision that cannot be
subject to the micro-managing of shareholders. Although Mr. Olson now states that he was only interested in other sources'
methodology of temperature measurements, Ford is apparently to conduct all of
the other tests to issue the reports that are called for in the Proposal. As Mr.
Olson states, he allows Ford staff, not external sources, great flexibility in
determining "relevant ranges of percent increases/decreases" under "What
Atmospheric Gases." Ford staff, not external sources, must make estimates of the
current annual global production of carbon dioxide into the atmosphere from a
myriad of sources. Ford staff, not external sources, must make estimates of
current annual global absorption of carbon dioxide from the atmosphere by
several sources. Ford staff, not external sources, must determine the effects of
the percent increase/decrease in radiation from the sun on global warming and
cooling. Ford staff, not external sources, must determine the relevant costs and
benefits of global warming and cooling. Any determination of whether Ford has
the scientists, statisticians, instruments and capital necessary to conduct all
of the tests to confirm whether or not global warming or cooling exists is an
every day business decision that should not be subject to shareholder review.
Accordingly, as stated in the Company's No-Action Request of January 15, the
Proposal is excludable under Rule 14a-8(i)(7). Ford has included in its previous proxy materials shareholder proposals related
to global warming issues and intends to include such a resolution in its 2004
proxy materials. These proposals have requested that the Company report on
various aspects of Company operations that produce greenhouse gases and how the
Company intends to reduce emissions of such gases. We view these proposals, that
request Ford to report on the extent to which its operations affect a
significant policy issue (i.e., global warming), as fundamentally different from
the Proposalone that requests Ford to expend scarce resources to conduct a
myriad of tests in order to make an independent determination whether a
significant policy issue even exists. Additionally, the Company based its No-Action Request, in part, on the fact that
the Proposal is vague, ambiguous and susceptible to various interpretations.
Although we list several questions left unanswered by the Proposal, it was by no
means an exhaustive list. Mr. Olson's response that it all is left to the
discretion of Ford staff does not absolve the Proposal of its inherent vagueness
and ambiguities. Rule 14a-8(a) defines a shareholder proposal as a
recommendation that the company take action and that the proposal state as
clearly as possible the course of action the shareholder believes the company
should follow. If the Company conducted the temperature measurement tests that
Mr. Olson now says the Proposal never required, it would not have taken the
course of action Mr. Olson now claims he intended (i.e., disclosure of the
methodology of external sources). Clearly, this is persuasive evidence that the
Proposal is so inherently vague and ambiguous that the Company cannot understand
the actions it is expected to take. The Proponent has failed to state clearly
the course of action he desires the Company to follow. Rather than providing reasons to deny no-action relief, we view the Proponent's
letter of January 26 as providing additional evidence that the Staff should
concur in Ford's intention to exclude the Proposal on the grounds stated in the
Company's No-Action Request of January 15. If you have any questions, require further information, or wish to discuss this
matter, please call Jerome Zaremba (313-337-3913) of my office or me
(313-323-2130). Very truly yours, /s/
Peter J. Sherry, Jr. cc: Mr. Carl Olson (via Federal Express) [INQUIRY LETTER]
July 16, 2003 Carl Olson
P. O. Box 6102
Woodland Hills, California 91365 Re: Shareholder Proposal for 2004 Annual Meeting
Dear Mr. Olson: Ford Motor Company ("Ford" or the "Company") hereby acknowledges the shareholder
proposal contained in your letter of July 5, 2003. Your letter requests that the
proposal relating to the Company issuing a Scientific Report on Global
Warming/Cooling (the "Proposal") be included in the Company's proxy materials
for the 2004 Annual Meeting of Shareholders. Eligibility requirements regarding stockholder proposals are set forth in Rule
14a-8 (copy enclosed) of the rules of the United States Securities and Exchange
Commission (the "SEC"). Under Rule 14a-8(b)(1), in order to be eligible to
submit a proposal, a stockholder must have continuously held at least $2,000 in
market value, or 1%, of the Company's securities entitled to be voted at the
annual meeting for at least one year by the date that the stockholder submitted
the proposal. In the event the stockholder is not a registered holder, Rule
14a-8(b)(2) provides that proof of eligibility should be submitted at the time
the proposal is submitted. Neither the Company nor its transfer agent was able
to confirm that you satisfy the eligibility requirements based on the
information that was furnished to the Company. Our transfer agent informed us that Carl A. Olson is a trustee of the Olson
Family Trust of Mission Viejo, California, which owns approximately 289 shares
of Ford common stock. As such the Olson Family Trust is eligible to submit a
shareholder proposal and, if you are the trustee, you may represent the trust in
its submission. If you are the same Carl A. Olson referenced above, and in order
to comply with eligibility requirements of Rule 14a-8(b), we ask that the
Proposal be resubmitted in the name of the Olson Family Trust.
If you are not the trustee of the Olson Family Trust, then we request that,
pursuant to Rule 14a-8(b), you furnish to the Company proper documentation
demonstrating (i) that you are the beneficial owner of at least $2,000 in market
value, or 1%, of Ford common stock, and (ii) that you have been the beneficial
owner of such securities for one or more years. We request that such
documentation be furnished to the Company within 14 calendar days of your
receipt of this letter. Under Rule 14a-8(b)(2) a stockholder may satisfy this
requirement by either (i) submitting to the Company a written statement from the
"record" holder of the stockholder's securities (usually a broker or bank)
verifying that, at the time of submission, the stockholder continuously held the
securities at least one year, or (ii) if the stockholder has filed a Schedule
13D, Schedule 13G, Form 3, Form 4 and/or Form 5, or amendments to those
documents or updated forms, reflecting the stockholder's ownership of the shares
as of or before the date on which the one-year period begins. If the stockholder
has filed one of these documents, it may demonstrate its eligibility by
submitting to the Company a copy of the schedule or form, and any subsequent
amendments, and a written statement that the stockholder continuously held the
required number of shares for the one-year period as of the date of the
statement. Additionally, Rule 14a-8(d) states that a proposal, including any accompanying
supporting statement, may not exceed 500 words. The Proposal contains
approximately 506 words. We request that you redraft the proposal to comply with
the 500-word limit of Rule 14a-8(d) and resubmit the Proposal.
In summary, we respectfully request that, if you are the trustee of the Olson
Family Trust, you please resubmit the Proposal in the name of the Trust in order
to meet the eligibility requirements of Rule 14a-8(b). If you are not the
trustee of the Olson Family Trust, please provide evidence of beneficial share
ownership as outlined in Rule 14a-8(b). In either case, please redraft the
Proposal so that it complies with the 500-word limit of Rule 14a-8(d). We
request that you comply with our requests within 14 days of your receipt of this
letter so that we can avoid petitioning the SEC for a No-Action letter on this
subject. If you would like to discuss the SEC rules regarding shareholder proposals or
anything else relating to the Proposal, please contact me at (313) 323-2130 or
Jerome Zaremba of my office at (313) 337-3913. Thank you for your interest in
the Company. Very truly yours, /s/
Enclosure [INQUIRY LETTER]
December 1, 2003 Carl Olson
P. O. Box 6102
Woodland Hills, California 91365 Re: Shareholder Proposal for 2004 Annual Meeting
Dear Mr. Olson: Ford Motor Company ("Ford" or the "Company") hereby acknowledges the shareholder
proposal contained in your letter of September 24, 2003. Your letter requests
that the proposal relating to the Company issuing a Scientific Report on Global
Warming/Cooling (the "Proposal") be included in the Company's proxy materials
for the 2004 Annual Meeting of Shareholders. We note that you have provided
satisfactory evidence of share ownership. Please note that Ford reserves its right to file a No-Action Request with the
United States Securities and Exchange Commission ("SEC") in order to exclude the
Proposal from its 2004 proxy materials. If we decide to file such a letter, we
will notify you in accordance with SEC rules. If you have any questions or comments with regard to this matter, please do not
hesitate to contact me at (313) 323-2130 or Jerome Zaremba of my office at (313)
337-3913. Thank you for your interest in Ford Motor Company.
Very truly yours, /s/
[STAFF REPLY LETTER]
March 2, 2004 Response of the Office of Chief Counsel Division of Corporation Finance
Re: Ford Motor Company
Incoming letter dated January 15, 2004 The Proposal recommends that the board publish annually a report to the
stockholders entitled "Scientific Report on Global Warming/Cooling" that
includes detailed information on temperatures, atmospheric gases, sun effects,
carbon dioxide production, carbon dioxide absorption, and costs and benefits at
various degrees of heating or cooling. There appears to be some basis for your view that Ford may exclude the proposal
under rule 14a-8(i)(7) as relating to ordinary business operations (i.e., the
specific method of preparation and the specific information to be included in a
highly detailed report). Accordingly, we will not recommend enforcement action
to the Commission if Ford omits 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 upon which Ford relies.
Sincerely, /s/
Daniel Greenspan
Attorney-Advisor |
