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Jpmorgan Case & Co.; Rule 14A-8 No-Action Letter

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Jpmorgan Case & Co.; Rule 14A-8 No-Action Letter UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549-4561 March 16,2010 Marin P. Dun O'Melveny & Myers LLP 1625 Eye Street, NW Washington, DC 20006-4001 Re: JPMorgan Chase & Co. Incoming letter dated January 11, 2010 Dear Mr. Dun: This is in response to your letters dated January 11, 2010, March 5, 2010, and March 9, 2010 concerning the shareholder proposal submitted to JPMorgan Chase by the Community Reinvestment Association of North Carolina. We also have received letters from the proponent dated February 24,2010, March 8, 2010, and March 10,2010. Our response is attached to the enclosed photocopy of your correspondence. By doing this, we avoid having to recite or summarize the facts set forth in the correspondence. Copies of all ofthe correspondence also wil be provided to the proponent. In connection with this matter, your attention is directed to the enclosure, which sets forth a brief discussion ofthe Division's informal procedures regarding shareholder proposals. Sincerely, Heather L. Maples Senior Special Counsel Enclosures cc: Joel R. Skillern Executive Director Community Reinvestment Association of North Carolina P.O. Box 1929 110 E Geer Street Durham, NC 27701 March 16, 2010 Response of the Offce of Chief Counsel Division of Corporation Finance Re: JPMorgan Chase & Co. Incoming letter dated Januar 11, 2010 The proposal requests that the board of directors implement a policy mandating that JPMorgan Chase cease its curent practice of issuing refund anticipation loans. There appears to be some basis for your view that JPMorgan Chase may exclude the proposal under rule 14a-8(i)(7), as relating to JPMorgan Chase's ordinary business operations. In this regard, we note that the proposal relates to JPMorgan Chase's decision to issue refud anticipation loans. Proposals concernng the sale of particular services are generally excludable under rule 14a-8(i)(7). Accordingly, we wil not . recommend enforcement action to the Commission if JPMorgan Chase 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 basis for omission upon which JPMorgan Chase relies. Sincerely, Jan Woo Attorney-Adviser DIVISION OF CORPORATION FINANCE . INFORM PROCEDURES. REGARDING. SHAHOLDER PROPOSALS The Division of Corporation Finance believes that tts responsibility with respect to matters arising under Rule 14a-8 (17 CFR 240. 14a-8), as with other matters under the proxy Illes, is to aid those who must comply with the ruleby offering informal advice and suggestions and to determine, initiaHy, whether or not it may be appropriate in a paricular matter to recommend enforcement action to the Commission~ In connection with .under Rule 14a-8, the Division's staff considers the information fuisheda toshareholder it by the Company proposal in support of its intention to exclude the proposals as an informationfuished by the proponent or thefrom proponent's the Company's representative. proxy materials,asweH -.- Although Rule 14a-8(k) does not require any - Commission's staff, the staffwiH always consider informationcommunications concerning from alleged shareholders violations to the of . -. the statutes administered by the Commission, including argument as to whether or not activities proposed to be taen would be violative of the statute or of such information, however, should not be constred asrule changing involvèd. the staffsThe receipt informal by the staff procedures and proxy review into a formal or adversar procedure. It is importt to note that the stafr s and Commission's no-action Rule 14a-8(j) submissions refle.ct only informal views. The determinationsresponses reached into these no- action letters do not ard cannot adjudicate the merits of a company's position with respect to the proposal. Only a cour such as a U.S. District Court can decide to include shareholder proposals in its proxy materials. Accordinglywhether a discretionar a company is obligated determination not to recommend or take Commission enforcement action, does not proponent, or any shareholder of a company, from pursuing any rights he or she maypreclude have against a the company in court, should the management omit the. proposal from the company's proxy materiaL. March 10,2010 VIA Email (shi:ß:;llQÜ:lQiim2n~Ei~ll:w!2S-l~r~,.gJrd Office of Chief counsel Division of Corporation Finance Securities and Exchange Commission 100 F Street, NE Washington, DC 20549 Re: JP Morgan Chase & Co. Shareholder Proposal of Community Reinvestment Association of North Carolina Securities Exchange Act of 1934 Rule 14 a-8 Dear Ladies and Gentlemen, In response to the letter of March 9, 2010 from JP Morgan Chase, the Communty Reinvestment Association of North Carolina respectfully disagrees with the Company's argument that the Departent of Defense has not concluded that Refud Anticipation Loans are predatory. We request that the SEC staff read for itself the Departent of Defense report on Predatory Lending Targeting Miltary Families. The report is included in our response of February 24,2009 and can be found online at http://www .defense_gov !pubs/pdts/Repor(toCongressmfinal.pdf The Introduction (section I b page 2) lists the tyes of predatory consumer lending described in the report including tax refud anticipation loans. A description of refund anticipation loans is found under section 3 Prevalence of Predatory Lending Around Military Communities subsection f. Refud Anticipation Loans page 20.: The DoD report clearly considers refud anticipation loans predatory. The report bases this determination on the assessment that RALS meet the characteristics of predatory consumer lending (page 4). Thus the characteristics of predatory lending are established, RALs are found to meet them and are included as a category of predatory lending. We request that SEC staff review the second source disputed by the Company Limitations on Terms of Consumer Credit Extended to Service Members and Dependents; Final Rule. Departent of Defense RI 0790-AI20, 72 Fed. Reg. (Aug. 31, 2007). The Final Rule states the characteristics of consumer lending that are predatory, and includes Refud Anticipation Loans as a high cost, predatory product under these terms. The Communty Reinvestment Association of North Carolina again asserts that the characteristics of predatory lending for consumer loans have been established and that RALs have been determined as predatory. As documented in our letter of February 24,2009, a variety of authorities including former IRS Commssioner Everson and Ilinois Governor Pat Quinn and Attorney General Richard Blumenthal of Connecticut have called refud anticipation loans predatory. We are not askig the SEC staff to determne whether RAS are predatory, other policy bodies and leaders have done that. The Company's provision of Refud Anticipation Loans is a matter of social policy that shareholders have a right to discuss and vote on. Sincerely, s:/ Joel R. Skillern Joel R. Skillern Executive Director o O'MELVENY & MYERS LlP In:IJI!\G 1625 Eye Street, NW !\I':W YORK BRUSSELS Washington, D.C. 20006-4001 SAN FRAl'CISCO C¡.i-TURY CITY Ti,:u:i'1I0l'i- (202) 383-5300 SIIAl'GIIAI 1I0NG KOl'G FACSIMIU; (202) 383-5414 SILICON VALLEY LOl'J)ON www.omm,com Sii-CAPORE LOS ANGI';U:S TOKYO i-EWPORT Bt:¡\CII 1934 Act/Rule 14a-8 March 9, 2010 VIA E-MAIL (shareliolderproTJosals0!sec.J!ov) Office of Chief Counsel Division of Corporation Finance U.S. Securities and Exchange Commission 100 F Street, NE Washington, DC 20549 Re: JPMorgan Chase & Co. Shareholder Proposal of Community Reinvestment Association of North Carolina Securities Exchange Act of 1934 Rule 14a-8 Dear Ladies and Gentlemen: This letter concerns the request dated January 11, 2010 (the "Initil Request Letter") that we submitted on behalf of our client JPMorgan Chase & Co. (the "Company'') seeking confirmation that the staff (the "Staff') of the Division of Corporation Finance of the U.S. Securities and Exchange Commission (the "Commission'') wil not recommend enforcement action to the Commission if, in reliance on Rule 14a-8 under the Securities Exchange Act of 1934, the Company omits the shareholder proposal (the "Proposal'') and supporting statement (the "Supporting Statement'') requesting that the Company cease the issuance of refund anticipation loans ("RALs") submitted by the Community Reinvestment Association of Nort Carolina (the "Proponent") fromthe Company's proxy materials for its 2010 Annual Meeting of Shareholders (the "2010 Proxy Materils"). The Proponent submitted letters to the Staff dated February 24,2010 (the "Initl Proponent Letter") and March 8, 2010 (the "Second Proponent Letter") asserting its view that the Proposal is required to be included in the 2010 Proxy Materials. The Company respectfully disagrees with the statement in the Second Proponent Letter that "the clear consensus among policymakers is . that the practice of RALs lending itself is i Indeed, neither the cited basis for this position (a report by the Department of predatory." Second Proponent Letter at 2. O'MElVENY & MYERS LLP Securities and Exchange Commission -- March 9, 2010 Page 2 Defense 2) nor the source cited in footnote 3 of the Second Proponent Letter (a Department of Defense rule release3) reach any such position. Indeed, while the Deparment of Defense report describes certain actions by predatory lenders in connection with RALs,4 it never concludes that RALs are predatory. Similarly, while the Department of Defense release discusses the broad. range of characteristics that have been identified as being present in predatory lending, it never concludes that RALs are predatory. The Company shares the concern voiced in the Second Proponent Letter regarding lending practices that may be predatory. However, the Proposal does not focus on predatory lending practices. Instead, the Proposal seeks a Staff determination that any short-term consumer loan designed to be re-paid by a tax refund -- including any RAL issued by the Company -- is predatory, regardless of the circumstances.
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