Company Name: Home Depot, Inc.
Public Availability Date: January 8, 2008

Document Sections:

INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
INQUIRY LETTER
APPENDIX
STAFF REPLY LETTER

[INQUIRY LETTER]

December 20, 2007

Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549

Re: Shareholder Proposal of Mr. Kenneth Steiner

Ladies and Gentlemen:

On December 17, 2007, The Home Depot, Inc. (the "Company") submitted a letter (the "No-Action Request") to the staff at the Division of Corporation Finance requesting that the Staff confirm that no enforcement action will be recommended against the Company if the Company excludes a shareholder proposal from the Company's proxy materials for its 2008 Annual Meeting of Shareholders (the "2008 Proxy Materials"). Mr. Kenneth Steiner (the "Proponent") submitted the proposal (the "Proposal") to request the Company to "fully adopt simple majority vote requirements in our Charter and Bylaws."

On December 19, 2007, Mr. John Chevedden, the Proponent's representative, submitted a letter to the Staff (the "December 19 Letter") that stated that there are 80% super-majority voting provisions in the Company's Certificate of Incorporation (the "Charter") and requested that concurrence not be granted to the Company on the basis of substantial implementation.

The purpose of this letter is to respond to the December 19 Letter. Contrary to Mr. Chevedden's assertion, the current version of the Charter does not contain any super-majority shareholder voting provisions. The Charter to which Mr. Chevedden refers is not the current version of the Charter. The current version was disclosed by the Company on its Form 10-K for the fiscal year ended January 28, 2007, and filed by the Company on March 29, 2007, and refers to the Charter filed with the Securities and Exchange Commission on the Form 10-Q for the fiscal quarter ended August 4, 2002 (the "2002 Charter"). The 2002 Charter, a copy of which was provided to the Staff and Mr. Chevedden on or about December 18, is the correct and current Charter. The 2002 Charter does not contain the super-majority provisions cited by Mr. Chevedden. Moreover, all super-majority shareholder voting requirements have been eliminated from the Company's charter documents and, consequently, the Company has stated that exclusion of the Proposal is warranted because it has implemented the Proponent's request.

Therefore, on the basis of the grounds discussed in the No-Action Request and reiterated herein, the Company believes that it may omit the Proposal from the 2008 Proxy Materials pursuant to Rule 14a-8.

Pursuant to Rule 14a-8(j), enclosed are six copies of this letter. A copy of this letter is also being mailed on this date to Mr. Chevedden.

Kindly acknowledge receipt of this letter by stamping and returning the enclosed copy of the first page and returning it in the enclosed envelope. If you have any questions with respect to this matter, please telephone me at (770) 384-2858. I may also be reached by fax at (770) 384-5842.

Very truly yours,

/s/

Jonathan M. Gottsegen, Director
Corporate and Securities Practice Group

[INQUIRY LETTER]

December 17, 2007

Office of Chief Counsel
Division of Corporation Finance
U.S. Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549

Re: Shareholder Proposal of Mr. Kenneth Steiner

Ladies and Gentlemen:

On behalf of The Home Depot, Inc. (the "Company"), the purpose of this letter is to notify the staff of the Division of Corporation Finance (the "Staff") of the Company's intention to exclude a shareholder proposal from the Company's proxy materials for its 2008 Annual Meeting of Shareholders (the "2008 Proxy Materials"). Mr. Kenneth Steiner (the "Proponent") submitted the proposal (the "Proposal"), which is attached as Exhibit A.

In accordance with Rule 14a-8 under the Securities Exchange Act of 1934, as amended, we hereby respectfully request that the Staff confirm that no enforcement action will be recommended against the Company if the Proposal is omitted from the 2008 Proxy Materials. Pursuant to Rule 14a-8(j), enclosed are six copies of this letter and Exhibits A-C. A copy of this letter, including Exhibits A-C, is being mailed on this date to Mr. John Chevedden, the Proponent's representative, in accordance with Rule 14a-8(j), informing him of the Company's intention to omit the Proposal from the 2008 Proxy Materials. The Company intends to commence distribution of its definitive 2008 Proxy Materials on or around April 11, 2008. Pursuant to Rule 14a-8(j), this letter is being submitted not less than 80 days before the Company files its definitive 2008 Proxy Materials with the Securities and Exchange Commission.

The Proposal sets forth the following resolution:

"RESOLVED: Shareowners urge our company to take all steps necessary, in compliance with applicable law, to fully adopt simple majority vote requirements in our Charter and By-laws. This includes any special solicitations needed for adoption."

We believe that the Proposal may be properly omitted in accordance with Rule 14a-8(i)(10) because the Company has substantially implemented the Proposal. In 2000 and 2001, the Company received similar proposals recommending the elimination of super-majority shareholder voting requirements. These proposals were included in the Company's annual meeting proxy statements. In 2002, a third simple-majority proposal (the "2002 Proposal") was submitted to the Company. The Staff granted no-action relief for the 2002 Proposal because the Company had "substantially implemented" a simple majority shareholder vote requirement. See The Home Depot, Inc. (Mar. 28, 2002).

Such implementation had occurred because the Company's 2002 annual meeting proxy statement included a proposal made by the Company to amend its Certificate of Incorporation (the "Company Proposal") that would, upon approval of Company shareholders, remove Article EIGHTH, a fair price provision that required the affirmative vote of the holders of at least 80% of the Company's outstanding common stock in order to adopt or authorize certain actions. The Company Proposal was approved by the Company's shareholders at the 2002 annual meeting, thereby eliminating the last of the Company's super-majority voting provisions.

The Company's intent to include the Company Proposal in its proxy materials in 2002 was sufficient for the Staff to grant no-action relief in 2002 under Rule 14a-8(i)(10). The Staff's views were confirmed in 2006 when a similar proposal was presented to the Company and the Staff concurred with the Company's intention to exclude such proposal in reliance on Rule 14a-8(i)(10). See The Home Depot Inc.,  (Jan. 26, 2006). Given the elimination of all super-majority shareholder voting provisions from the Company's charter documents, it is the Company's view that it has an even more compelling basis for exclusion under Rule 14a-8(i)(10) with respect to this year's Proposal. Moreover, Section 7 of Article I of the Company's By-laws provides for a majority vote on "all questions." As a result, the Company has implemented the objective sought by the Proposal. For your reference, a copy of the Company's Certificate of Incorporation and By-laws is attached as Exhibit B and Exhibit C, respectively.

Furthermore, Rule 14a-8(i)(3) allows a registrant to exclude a proposal that is contrary to any of the Commission's proxy rules, including Rule 14a-9, which prohibits materially false and misleading statements in proxy soliciting materials.

In Staff Legal Bulletin No. 14B, the Staff stated that Rule 14a-8(i)(3) permits exclusion of proposals where "the company demonstrates objectively that a factual statement is materially false or misleading." The Company believes that it can objectively demonstrate that the Proposal contains statements that are false and misleading within the meaning of Rule 14a-9.

In the supporting statement to the Proposal, the Proponent states that "[c]urrently a 1% minority can frustrate the will of our 79% shareholder majority. Also our supermajority vote requirements can be almost impossible to obtain when one considers abstentions and broker nonvotes." These statements are false and misleading because such statements unambiguously state that super-majority vote requirements still exist in the Company's governing documents. As explained above, the last provision in the Company's governing documents requiring a super-majority vote by shareholders was eliminated in 2002. This portion of the Proposal is therefore false and misleading and should be omitted from the 2008 Proxy Materials.

For the foregoing reasons, the Company believes it may properly exclude the Proposal from the 2008 Proxy Materials under Rules 14a-8(i)(10) or portions thereof as specified above under Rule 14a-8(i)(3).

Accordingly, the Company respectfully requests that the Staff not recommend enforcement action if the Company omits from its 2008 Proxy Materials the Proposal or the specific portions specified above. If the Staff does not concur with the Company's position, we would appreciate an opportunity to confer with the Staff concerning this matter prior to the issuance of a Rule 14a-8 response. The Proponent is requested to copy the undersigned on any response he may choose to make to the Staff.

Kindly acknowledge receipt of this letter by stamping and returning the enclosed copy of the first page and returning it in the enclosed envelope. If you have any questions with respect to this matter, please telephone me at (770) 384-2858. I may also be reached by fax at (770) 384-5842.

Very truly yours,

/s/

Jonathan M. Gottsegen, Director
Corporate and Securities Practice Group

[INQUIRY LETTER]

December 19, 2007

Office of Chief Counsel
Division of Corporation Finance
Securities and Exchange Commission
100 F Street, NE
Washington, DC 20549

The Home Depot, Inc. (HD) Shareholder Position on Company No-Action Request Rule 14a-8 Proposal: Simple Majority Vote Kenneth Steiner

Ladies and Gentlemen:

According to this copy of the company charter the company has 80% supermajority voting provisions (bold added):

HD

RESTATED CERTIFICATE OF INCORPORATION OF THE HOME DEPOT, INC., AS AMENDED

(Originally incorporated on June 29, 1978 under the name M. B. Associates Incorporated)

FIRST: The name of the corporation (which is herein referred to as the "Corporation") is The Home Depot, Inc. ...

SIXTH: 1. The business and affairs of the Corporation shall be managed

...

6. No amendment to the Certificate of Incorporation of the Corporation shall amend, alter, change or repeal any of the provisions of this Article SIXTH, unless the amendment effecting such amendment, alteration, change or repeal shall receive the affirmative vote of the holders of eighty percent (80%) of all shares of stock of the Corporation entitled to vote in the election of directors, considered for the purposes of this Article SIXTH as one class; provided that this paragraph 6 shall not apply to, and such eighty percent (80%) vote or consent shall not be required for, any amendment, alteration, change or repeal unanimously recommended to the stockholders by the Board of Directors of the Corporation if each of such directors is a person who would be eligible to serve as a continuing director as hereinafter defined in paragraph 7 of this Article SIXTH.

...

EIGHTH: 1. The affirmative vote or, if permitted under this Certificate of Incorporation, consent of the holders of eighty percent (80%) of all shares of the Corporation entitled to vote in the election of directors, considered for the purposes of this Article EIGHTH as one class, shall be required for the adoption or authorization of (i) a business combination (as hereinafter defined) with any other entity (as hereinafter defined) if, as of the record date for the determination of stockholders entitled to notice thereof and to vote thereon, or, if so permitted, consent thereto, such other entity is the beneficial owner, directly or indirectly, of more than twenty percent (20%) of the outstanding shares of stock of the Corporation entitled to vote in the election of directors, considered for the purposes of this Article EIGHTH as one class, or (ii) a proposed dissolution of the Corporation or a proposed amendment of the Certificate of Incorporation of the Corporation which would either change the entitlement of the holders of shares of Common Stock of the Corporation to vote in the election of directors or would authorize the Corporation to issue either shares of capital stock (other than shares of its Common Stock) or bonds, debentures or other obligations, which, if issued, would or could be entitled to vote in the election of directors if, as of the record date for the determination of stockholders entitled to notice of and to vote on or, if so permitted, consent to such proposed dissolution or such proposed amendment, an other entity (as hereinafter defined) is the beneficial owner, directly or indirectly, of more than twenty percent (20%) of the outstanding shares of stock of the Corporation entitled to vote in the election of directors, considered for the purposes of this Article EIGHTH as one class; provided that such eighty percent (80%) voting requirement shall not be applicable to the adoption or authorization of a business combination if:

...

For the above reasons it is respectfully requested that concurrence not be granted to the company on the purported basis of substantial implementation. It is also respectfully requested that the shareholder have the last opportunity to submit material in support of including this proposalsince the company had the first opportunity.

Sincerely,

John Chevedden

cc: Kenneth Steiner
Jonathan Gottsegen<Jonathan_M_Gottsegen@homedepot.com>

[INQUIRY LETTER]

Kenneth Steiner
14 Stoner Ave., 2M
Great Neck, NY 11021

Mr. Francis S. Blake Chairman
The Home Depot, Inc. (HD)
2455 Paces Ferry Rd
Atlanta GA 30339

Rule 14a-8 Proposal

Dear Mr. Blake,

This Rule 14a-8 proposal is respectfully submitted in support of the long-term performance of our company. This proposal is for the next annual shareholder meeting. Rule 14a-8 requirements are intended to be met including the continuous ownership of the required stock value until after the date of the respective shareholder meeting and the presentation of this proposal at the annual meeting. This submitted format, with the shareholder-supplied emphasis, is intended to be used for definitive proxy publication. This is the proxy for John Chevedden and/or his designee to act on my behalf regarding this Rule 14a-8 proposal for the forthcoming shareholder meeting before, during and after the forthcoming shareholder meeting. Please direct all future communication to John Chevedden at:

olmsted7p (at) earthlink.net
(In the interest of company cost savings and improving the efficiency of the rule 14a-8 process please communicate via email.)

PH: 310-371-7872
2215 Nelson Ave., No. 205
Redondo Beach, CA 90278

Your consideration and the consideration of the Board of Directors is appreciated in support of the long-term performance of our company. Please acknowledge receipt of this proposal promptly by email.

Sincerely,

/s/

Kenneth Steiner

10/27/07

Date

cc: James C. Snyder, Jr.
Corporate Secretary
PH: 770 433-8211
FX: 770 431-2685
Fax: 770 384-2356
F: 770-384-5552
F: 770-384-2739

[APPENDIX]

3Adopt Simple Majority Vote

RESOLVED, Shareowners urge our company to take all steps necessary, in compliance with applicable law, to fully adopt simple majority vote requirements in our Charter and By-laws. This includes any special solicitations needed for adoption.

Simple majority vote won a remarkable 72% yes-vote average at 24 major companies in 2007. This included an 83%-suporting vote at EMC Corp. (EMC). The Council of Institutional Investors www.cii.org recommends adoption of simple majority vote.

Currently a 1%-minority can frustrate the will of our 79%-shareholder majority. Also our supermajority vote requirements can be almost impossible to obtain when one considers abstentions and broker non-votes.

For example, a Goodyear (GT) proposal for annual election of each director failed to pass even though 90% of votes cast were yes-votes. While companies often state that the purpose of supermajority requirements is to protect minority shareholders, supermajority requirements are arguably most often used to block initiatives opposed by management but supported by most shareowners. The Goodyear vote is a perfect illustration.

Simple majority vote is particularly important when management needs greater accountability to avoid poor performance. A competitive management does not need the power to override a shareholder majority. Please encourage our board to respond positively to this proposal:

Adopt Simple Majority VoteYes on 3

Notes: Kenneth Steiner, 14 Stoner Ave., 2M, Great Neck, NY 11021 sponsored this proposal.

The above format is requested for publication without re-editing, re-formatting or elimination of text, including beginning and concluding text, unless prior agreement is reached. It is respectfully requested that this proposal be proofread before it is published in the definitive proxy to ensure that the integrity of the submitted format is replicated in the proxy materials. Please advise if there is any typographical question.

Please note that the title of the proposal is part of the argument in favor of the proposal. In the interest of clarity and to avoid confusion the title of this and each other ballot item is requested to be consistent throughout all the proxy materials.

The company is requested to assign a proposal number (represented by "3" above) based on the chronological order in which proposals are submitted. The requested designation of "3" or higher number allows for ratification of auditors to be item 2.

This proposal is believed to conform with Staff Legal Bulletin No. 14B (CF), September 15, 2004 including:

Accordingly, 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 because they are not supported;

the company objects to factual assertions that, while not materially false or misleading, may be disputed or countered;

the company objects to factual assertions because those assertions may be interpreted by shareholders in a manner that is unfavorable to the company, its directors, or its officers; and/or

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.

See also: Sun Microsystems, Inc. (July 21, 2005).

Stock will be held until after the annual meeting and the proposal will be presented at the annual meeting.

Please acknowledge this proposal promptly by email and advise the most convenient fax number and email address to forward a broker letter, if needed, to the Corporate Secretary's office.

[STAFF REPLY LETTER]

January 8, 2008

Response of the Office of Chief Counsel Division of Corporation Finance

Re: The Home Depot, Inc. Incoming letter dated December 17, 2007

The proposal urges Home Depot to take all steps necessary, in compliance with applicable law, to fully adopt simple majority vote requirements in its charter and by-laws.

There appears to be some basis for your view that Home Depot may exclude the proposal under rule 14a-8(i)(10). Accordingly, we will not recommend enforcement action to the Commission if Home Depot omits the proposal from its proxy materials in reliance on rule 14a-8(i)(10). In reaching this position, we have not found it necessary to address the alternative basis for omission upon which Home Depot relies.

Sincerely,

/s/

Craig Slivka
Attorney-Adviser