Amazon.Com, Inc. Incoming Letter Dated March 29, 2019
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UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON , D.C. 20549 DIVISION OF CORPORATION FINANCE April 3, 2019 Ronald O. Mueller Gibson, Dunn & Crutcher LLP [email protected] Re: Amazon.com, Inc. Incoming letter dated March 29, 2019 Dear Mr. Mueller: This letter is in response to your correspondence dated March 29, 2019 concerning the shareholder proposals (the “Proposals”) submitted to Amazon.com, Inc. (the “Company”) by the Sisters of St. Joseph of Brentwood et al. and John C. Harrington (the “Proponents”). We also have received correspondence on the Proponents’ behalf dated April 2, 2019. On March 28, 2019, we issued a no-action response expressing our informal view that the Company could not exclude the Proposals from its proxy materials for its upcoming annual meeting. You have asked us to reconsider our position. After reviewing the information contained in your correspondence, we find no basis to reconsider our position. Under Part 202.1(d) of Section 17 of the Code of the Federal Regulations, the Division may present a request for Commission review of a Division no-action response relating to Rule 14a-8 under the Exchange Act if it concludes that the request involves “matters of substantial importance and where the issues are novel or highly complex.” We have applied this standard to your request and determined not to present your request to the Commission. Copies of all of the correspondence on which this response is based will be made available on our website at http://www.sec.gov/divisions/corpfin/cf-noaction/14a-8.shtml. For your reference, a brief discussion of the Division’s informal procedures regarding shareholder proposals is also available at the same website address. Sincerely, Elizabeth M. Murphy Associate Director Enclosure cc: Sanford J. Lewis [email protected] DIVISION OF CORPORATION FINANCE INFORMAL PROCEDURES REGARDING SHAREHOLDER PROPOSALS The Division of Corporation Finance 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 the company in support of its intention to exclude the proposal from the company’s proxy materials, as well as any information furnished by the proponent or the proponent’s representative. Although Rule 14a-8(k) does not require any communications from shareholders to the Commission’s staff, the staff will always consider information concerning alleged violations of the statutes and rules administered by the Commission, including arguments as to whether or not activities proposed to be taken would violate the statute or rule involved. The receipt by the staff of such information, however, should not be construed as changing the staff’s informal procedures and proxy review into a formal or adversarial procedure. It is important to note that the staff’s no-action responses to Rule 14a-8(j) submissions reflect only informal views. The determinations reached in these no-action letters do not and cannot adjudicate the merits of a company’s position with respect to the proposal. Only a court such as a U.S. District Court can decide whether a company is obligated to include shareholder proposals in its proxy materials. Accordingly, a discretionary determination not to recommend or take Commission enforcement action does not preclude a proponent, or any shareholder of a company, from pursuing any rights he or she may have against the company in court, should the company’s management omit the proposal from the company’s proxy materials. SANFORD J. LEWIS, ATTORNEY April 2, 2019 Via electronic mail Office of Chief Counsel Division of Corporation Finance Securities and Exchange Commission 100 F Street, NE Washington, DC 20549 Re: Amazon.com Request for Reconsideration regarding proposals on facial recognition Ladies and Gentlemen: I am writing on behalf of the Proponents, John C. Harrington and the Sisters of St. Joseph of Brentwood et al. of the 2019 shareholder proposals (the “Proposals”) submitted to Amazon.com (the “Company”) regarding facial recognition. We are writing in response to the March 29, 2019 request for reconsideration and appeal to the Commission (“Reconsideration Letter”) submitted on behalf of Amazon.com by Ronald O. Mueller of Gibson Dunn. A copy of this reply is being submitted concurrently to Mr. Mueller. SUMMARY The Reconsideration Letter purports to offer four grounds for overturning the Staff’s no action ruling of March 28. (Our prior February 28, 2019 reply to the no action request is attached.) In our opinion, the purported bases for exclusion of the Proposals are without foundation in the shareholder proposal rules, and would reverse decades of Staff and Commission rulings finding that proposals addressing human rights abuses are appropriate for shareholder consideration. First, the Reconsideration Letter asserts that the topic of the Proposals is better suited to congressional deliberations than review by shareholders. There is no basis under Rule 14a-8 for reconsideration on the basis of this “leave it to the legislature” argument; in fact, such a ruling would be inconsistent with the Commission’s guidance that in order to transcend ordinary business, a proposal should address a topic of widespread debate. The suggested principle for exclusion, without legal basis in the Rule, also would directly contradict the existing ordinary business rule, under which the expressed interest in the issue by lawmakers are grounds for non- exclusion. Further, deference for human rights protection to government legislative bodies, whether in the US, at the local level, or internationally is inconsistent with the long history of shareholder proposals addressing human rights implications of company operations. Second, the Reconsideration Letter asserts that the subject matter of the Proposals does not fulfill the relevance requirements of Rule 14a-8(i)(5) as “otherwise significantly related” to the Company. However, the Proponents have provided ample evidence that the issues of public trust ______________________________________________________________________________ PO Box 231 Amherst, MA 01004-0231 • [email protected] • (413) 549-7333 Office of Chief Counsel April 2, 2019 Page 2 regarding privacy and civil liberties associated with facial recognition have already implicated the Company’s reputation – with its employees, with civil society, and with the public. These consumer trust issues are central to the Company’s business model, and are vulnerable to breaches. At the same time, they are directly connected to a substantial pipeline of additional artificial intelligence products that will continue to raise the bar on sustaining consumer trust against ever greater intrusions on privacy and civil liberties. Third, the reconsideration request asserts that the Proposals should be excludable as lacking nexus under Rule 14a-8(i)(7), mischaracterizing the Proposals as directed toward “misuse” of Rekognition. The Company’s Amazon Web Services (AWS) segment is a leading cloud computing company that is integrating facial recognition software to its services, which the Proposals assert is being done at risk to civil liberties, privacy and public trust in the Company’s products and services. The nexus of this issue to the Company is clear. The Proposals are not directed toward mere misuse, but toward the capacities and inevitable concerns raised when the software is placed in the hands of government and police entities. Prior decisions of the Staff finding nexus and rejecting Rule 14a-8(i)(7) claims where proposals addressed internet technology and services companies lack of measures to prevent surveillance or interference with freedom of expression in repressive countries are directly apropos. In short, the Reconsideration Letter provides no new information or basis for reconsidering the Proposals, but merely is an attempt to recycle the Company’s failed arguments. The reconsideration request should be denied. Further, the Reconsideration Letter provides no basis for Commission Review – it contains no substantial policy issues appropriate for Commission review under Rule 14a-8 and Paragraph 202.1(d) of Title 17 of the Code of Federal Regulations. ANALYSIS 1. The Company’s assertion that issues of facial recognition and human rights are best addressed by legislative bodies is inconsistent with the shareholder proposal rule. Initially, the Reconsideration Letter suggests that the issues of jeopardy to civil and human rights raised by the Company’s marketing of facial recognition are “more appropriately left to Congress and others charged with establishing applicable legal standards.” The Letter states: The Company understands why people want there to be oversight and guidelines put in place to make sure facial recognition technology cannot be used to discriminate. In this regard, on February 7, 2019, after the Request Letter was submitted, the Company stated its view that the issues around how law enforcement uses facial recognition technology are appropriately addressed through a national legislative framework that protects individual civil rights and ensures that governments are