Company Name: New York Times Co. (Recon.)
Public Availability Date: January 23, 2008
Document Sections:
INQUIRY LETTER
INQUIRY LETTER
STAFF REPLY LETTER
[INQUIRY LETTER]
15 January 2008
Office of the Chief Counsel
Division of Corporation Finance
Securities & Exchange Commission
100 F Street, NE
Washington, DC 20549
Dear Counsel:
I write in response to the reply letter of 14 January 2008 that was submitted by
counsel for The New York Times Company in opposition to the shareholder
resolution submitted by Legal & General Assurance (Pension Management) Limited.
We agree that the issues are fairly presented in the opening exchange of
correspondence, but the Company's reply raises two new points that we address
briefly.
1. The Company cites The New York Times Co. (17 January 1992) as authority for
the proposition that, ever. if the current proposal is limited to Class A
stockholders, it must still be excluded. The cited letter is materially
different, however, because it sought to regulate the nomination process, not
the election itself. The 1992 proposal asked the board to nominate for election
by the Class A stockholders a slate of candidates who, if elected, would vote a
certain on abortionrelated issues. As the Division is aware, the nomination
process is quite distinct from the election process. Even if one accepts the
Company's view that its Class A stockholders lack the power to participate in
the nomination process, the current resolution involves a power that the Company
concedes these stockholders possess, namely, the power to elect four candidates.
2. The Company objects to the proposed language change, which would clarify that
only Class A director candidates would be subject to a majority voting regime.
This is precisely the sort of minor modification that was intended in STAFF
LEGAL BULLETIN No. 14 (2001), as it does not materially change the substance of
the proposal, but responds to a technical point. The decision cited by the
Company, Johnson & Johnson (31 January 2007), is not germane because it dealt
with a specific situation, i.e., a "say on pay" resolution that were submitted
after the Commission's recent compensation disclosure rules, yet which used an
outdated template that was based on the prior regulatory regime. In that case,
the Commission had provided clear instructions as to what should be done to
avoid exclusion.
The present situation is closer to the situation where a proposal arguably runs
afoul of a legal requirement that can be easily addressed, e.g., by making a
binding proposal precatory or clarifying that a recommendation would apply
prospectively only. STAFF LEGAL BULLETIN NO. 14, E.5. Indeed, last year in
response to a bylaw proposal that the proponent was ineligible to submit under
state law, the proponent made the proposal precatory in order to address that
issue, and the company withdrew its opposition. UnitedHealth Group, Inc. (27
March 2008). The situation here is closer to that example than to the one the
Company cites.
Thank you for your consideration of these points. Please do not hesitate to
contact me if there is any further information that we can provide.
Very truly yours,
/s/
Cornish F. Hitchcock
cc: Rhonda L. Brauer, Esq.
Legal & General Assurance (Pension Management) Limited
[INQUIRY LETTER]
16 January 2008
Office of the Chief Counsel
Division of Corporation Finance
Securities & Exchange Commission
100 F Street, NE
Washington, DC 20549
Dear Counsel:
I write in response to the reply letter of 14 January 2008 from counsel for The
New York Times Company, which opposes the shareholder resolution submitted by
Legal & General Assurance (Pension Management) Limited. We agree that the issues
are fairly presented in the opening exchange of letters and write only to answer
two new points in the Company's reply.
1. The Company cites The New York Times Co. (17 January 1992) as authority for
the proposition that the current proposal must still be omitted even it is
amended to affect only the election of Class A stockholders. The cited letter is
materially different, however, because it sought to regulate the nomination
process, not the election itself. There are important analytical distinctions
between the two.
Specifically, the 1992 proposal asked the board to nominate for election by the
Class A stockholders a slate of candidates who were committed to vote a certain
way on abortion issues. One can see how such a resolution, which tries to steer
the board of directors in deciding which candidates to nominate, would go beyond
the voting power of Class A stockholders under the interpretation advanced by
the Company. However, the present resolution involves not a responsibility
entrusted to the board of directors, but a power that the Company concedes is
granted to Class A stockholders, namely, the power to elect four directors. The
1992 abortion letter thus has no bearing on the present situation.
2. The Company objects to the proposed language change, which would clarify that
only Class A director elections would be subject to a majority voting regime.
This is precisely the sort of minor modification that was intended in STAFF
LEGAL BULLETIN No. 14 (2001), as it does not materially change the substance of
the proposal, but responds to a technical point that can easily be corrected.
The decision cited by the Company, Johnson & Johnson (31 January 2007), is not
germane because it dealt with a very specific situation, i.e., a "say on pay"
resolution that was submitted after the Commission's recent compensation
disclosure rules and that used an outdated template based on the prior
regulatory regime. In that case, the Commission had provided clear guidance on
what should be done to avoid exclusion of a proposal in light of the rule
changes; also, allowing the proponent to update its proposal would require more
than a minor rewrite.
The present situation is closer to one in which a proposal is said to run afoul
of a state law or other requirement that can be easily addressed, e.g., by
making a binding proposal precatory or clarifying that a recommendation would
apply prospectively only. STAFF LEGAL BULLETIN No. 14, E.5. Here the Company
concedes that Class A stockholders such as Legal & General have the power to
elect Class A directors; a resolution limiting the proposal to the election of
such directors is plainly the sort of technical change contemplated by the
Division's guidance.
Thank you for your consideration of these points. Please do not hesitate to
contact me if there is any further information that we can provide.
Very truly yours,
/s/
Cornish F. Hitchcock
cc: Rhonda L. Brauer, Esq.
Legal & General Assurance (Pension Management) Limited
[STAFF REPLY LETTER]
January 23, 2008
Cornish F. Hitchcock
Attorney at Law
1200 G Street, Suite 800
Washington, DC 20005
Re: The New York Times Company Incoming letter dated January 15, 2008
Dear Mr. Hitchcock:
This is in response to your letters dated January 15, 2008 and January 16, 2008
concerning the shareholder proposal submitted to the New York Times by Legal &
General Assurance (Pensions Management) Limited. On January 15, 2008, we issued
our response expressing our informal view that the New York Times could exclude
the proposal from its proxy materials for its upcoming annual meeting.
We received your letters after we issued our response. After reviewing the
information contained in your letters, we find no basis to reconsider our
position.
Sincerely,
/s/
Jonathan A. Ingram
Deputy Chief Counsel
cc: Rhonda L. Brauer
Secretary and
Corporate Governance Officer
The New York Times Company
620 8th Avenue, 18th Floor
New York, NY 10018
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