Medical Committee for Human Rights v. Securities and Exchange Commission

The Medical Committee for Human Rights (MCHR) (plaintiff), a shareholder of Dow Chemical Company (Dow), a Delaware corporation, submitted a shareholder proposal to Dow for inclusion in Dow’s proxy statement pursuant to Rule 14a-8 under § 14 of the Securities Exchange Act of 1934. The proposal requested an amendment to Dow’s certificate of incorporation that would prohibit Dow from manufacturing napalm. Dow’s response, sent to both MCHR and the Division of Corporation Finance (division) of the Securities and Exchange Commission (SEC) (defendant), said Dow intended to omit the proposal from the proxy statement on the grounds that the proposal related to Dow’s ordinary business operations and was submitted mainly to promote a general political or social cause. Dow argued that by attempting to restrict the products Dow could manufacture and sell, the proposal ran counter to Delaware law, which placed business decisions like these in the hands of management, not shareholders. Dow also claimed that because it had previously been the target of political protests over its sale of napalm, MCHR’s proposal must have been similarly motivated. Dow itself appeared to have nonbusiness motivations for continuing to sell napalm, because Dow’s management was repeatedly quoted as saying the sale of napalm was morally and politically desirable. The division informed Dow and MCHR that the division would not recommend an enforcement action be brought against Dow if Dow omitted the proposal. MCHR requested that the SEC review the division’s position, which the SEC upheld without giving the basis for its decision. MCHR appealed the SEC’s decision to the United States Court of Appeals for the District of Columbia Circuit.