TIAA-CREF asks feds for OK to dodge Israeli divestment vote at annual meeting

Israel/Palestine
on 13 Comments
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TIAA-CREF “For the Greater  (old corporate logo)

TIAA-CREF , Teachers Insurance and Annuity Association (TIAA) and College Retirement Equities Fund (CREF), is one of the largest retirement systems in the world. It has 60 offices in the US and 15,000 client institutions in the academic, research, medical, cultural and nonprofit fields.  

Back in February, over 200 CREF investors filed a shareholder proposal, asking CREF trustees to end investments in companies that profit from serious human rights violations, including those profiting from Israel’s occupation of Palestinian lands. The proposal was set to be voted by all CREF shareholders this July. And TIAA-CREF officials are now asking the Securities and Exchange Commission (SEC) to allow it to “take no action” on this proposal– essentially keeping it off the ballot.

The financial services giant has done this move before. From “Pensions and Investments:”

CREF officials in a March letter to the Securities and Exchange Commission requested that they be allowed to take no action on the proposal, said a company source, who asked for anonymity.

TIAA-CREF spokesman John McCool said in a statement that the letter to the SEC will be made public only after the SEC staff has a chance to respond.

In 2011, Jewish Voice for Peace filed a shareholder proposal calling for CREF to divest from three companies doing business in the Jewish settlements in the West Bank — Caterpillar, Veolia Environment and Elbit — if the companies did not change how they operated their businesses in the West Bank. The matter was never heard by the CREF shareholders after the SEC sided with CREF in a similar request to avoid the matter.

CREF officials had argued in a 2011 letter to the SEC that the proposal would have interfered with CREF’s investment-making decisions.

Sydney Levy, a spokesman for Jewish Voice for Peace, said the shareholder proposal was rewritten this year not to require divesture of a specific company.

Attorney Nitsana Darshan-Leitner of the Israel Law Center said in an interview that the Jewish Voice for Peace resolution was “anti-Semitic” and “anti-Israel.”

Yes, you can see that the infamous rightwing Israeli lawfare bullies, the law center Shurat HaDin, is hot on the trail. Shurat HaDin blasted out a press release via email to its rank and file yesterday trying to put the campaign on an “Arab boycott”, leaving out the role of CREF clients. That email has now landed in Reuters along with a disclaimer (“not responsible for the content”).

From Reuters: Israel-based civil rights group informs Fortune 100 pension giant against divestment proposal

Tel Aviv, April 10, 2013: A Tel Aviv-based civil rights group warned the Teachers Insurance and Annuity Association – College Retirement Equities Fund (TIAA-CREF) on Wednesday that adoption of a resolution boycotting Israeli firms and investments would be in direct violation of New York and Federal law. Recently, members of the Boycott, Divestment and Sanctions (BDS) movement, calling for the policy, submitted a resolution to be voted upon at the fund’s upcoming membership meeting.
 
Nitsana Darshan-Leitner, the director of Shurat HaDin – Israel Law Center, stressed that if CREF adopts the resolution it would be officially taking an extremely hostile position against Israel, and its companies, and unfairly involving itself in the Middle East conflict.
 
“Considering that the TIAA-CREF’s corporate charter limits its proper function to conducting business ‘to aid and strengthen nonprofit colleges, universities’ we do not understand how a biased and malicious resolution like this can properly be presented to their membership. The resolution violates standing laws, is contrary to public policy and must be abandoned,” Darshan-Leitner added.
 
In a letter sent to the pension giant’s executives, Darshan-Leitner pointed out that New York law defines boycotts as “unlawful discriminatory practice” and that any decision to “refuse to buy from, sell to or trade with, or otherwise discriminate against any person, because of the…creed…[or ]national origin” is unlawful and even places secondary actors, aiding the policy, under liability.
 
The letter noted that the Ribicoff Amendment to the Tax Reform Act of 1976 also makes it a federal violation to “participate in or cooperate with an international boycott.” The BDS boycott of Israel is an extension of the continuing Arab boycott of Israel…
 

[Darshan-Leitner said] “If the resolution passes and TIAA-CREF does not expressly disown itself of the results, Shurat HaDin will be ready to immediate bring take action to ensure the enforcement of New York’s anti-discrimination laws, take all steps to ensure enforcement of Federal anti-boycott laws and to ensure that Israeli companies are not financially harmed nor discriminated against,” she said…
 
Shurat HaDin – Israel Law Center is an Israel-based organization dedicated to enforcing basic human rights through the legal system and represents victims of terrorism in courtrooms around the world. Its clients include American, European, and Israeli citizens. It is unaffiliated with any political party or governmental body.

The press release doesn’t even mention the WeDivest Coalition, though WeDivest initiated this latest effort.

WeDivest originated with Jewish Voice for Peace,  but now includes five additional organizations: the US Campaign to End the Israeli OccupationAdalah-NYThe US Palestinian Community NetworkGrassroots International, the American Friends Service Committee.

Instead, the Shurat HaDin release claim is that the proposal was submitted by “members of the Boycott, Divestment and Sanctions (BDS) movement…continuing the Arab boycott of Israel.” This is not true. I contacted Omar Barghouti from the BDS National Committee who said this was not their effort.

They may wish to argue that JVP is a “member” of the BDS movement, although no such membership concept exists, except in the BDS National Committee, which is only a Palestinian coalition of member federations, networks and political parties. This is possibly based on a recent JVP statement where they considered themselves “part of” the BDS movement.

Still, it is not really accurate to say JVP is a “member” of the BDS movement.

The BNC has not submitted this resolution, needless to say.

BNC wholeheartedly supports all boycott and divestment resolutions aimed at holding Israel accountable for its occupation, colonization and apartheid, and the BNC is proud of the WeDivest-initiated campaign to pressure TIAA-CREF to divest from companies sustaining Israel’s occupation.
 

Since 2010, the We Divest Campaign (wedivest.org/) , of which JVP is a member, has been urging TIAA-CREF to divest from companies profiting from Israel’s military occupation, and meantime TIAA-CREF officials has been attempting to thwart these shareholder resolutions by seeking to “bar its shareholders from ever seeing or voting on the shareholder proposal”. Nonetheless, in June 2012  TIAA-CREF dropped Caterpillar, Inc. from its Social Choice Funds portfolio.

We’ll be updating on this CREF shareholder proposal shortly, including any response from the SEC staff to TIAA-CREF request.

About Annie Robbins

Annie Robbins is Editor at Large for Mondoweiss, a mother, a human rights activist and a ceramic artist. She lives in the SF bay area. Follow her on Twitter @anniefofani

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13 Responses

  1. Les
    April 11, 2013, 2:36 pm

    Chutzpah

  2. ritzl
    April 11, 2013, 3:01 pm

    What does “Shurat HaDin” mean in Hebrew?

    From the article and the wiki:

    Shurat HaDin, Israel Law Center (ILC), founded in 2003, is a Tel Aviv-based civil rights[1] non-governmental organization focused on representing terror victims and using litigation against groups that they accuse of supporting terrorism.

    Leaving aside their highly questionable/selective “civil rights” protestation, this is an unquestionably Israeli org. To whom the equally unquestionable response should be, Butt Out(!).

    Why are these people given any credence or relevance on the issue at hand?

    Thanks Annie.

    • lysias
      April 11, 2013, 6:46 pm

      I think I’ve read someplace that “Shurat HaDin” is the Hebrew for “lawfare”. “Din” in Hebrew means “judgment” or “law”. “Shurah” in Biblical Hebrew means “line” or “row”. However, the cognate “shura” in Aramaic means “wall”, and I wonder whether Modern Hebrew has taken over the Aramaic meaning. In which case “Shurat HaDin” would mean something like “legal wall (of defense)”.

  3. HarryLaw
    April 11, 2013, 3:13 pm

    I thought the Hasting Law School “litigating Palestine” established that Boycott was not illegal in the USA, as Shurat Ha Din claim, on the grounds that the right to engage in commerce and invest in any business you like, includes the right not to.

    • Annie Robbins
      April 11, 2013, 5:38 pm

      harry, as far as i know boycotting companies in the US is not illegal. however it is against the law in NY (and probably other states) to discriminate based on “age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, or marital status”

      link to dhr.ny.gov

      iow, the Israel Law Center would need to make the argument the divestment initiative is based on national origin, which it isn’t. this is not that much different than what Michael Ratner was talking about when he said “Israel’s supporters have turned the situation “upside down” ” wrt using Federal anti-discrimination law to shut down free speech. link to mondoweiss.net

      it also reminds me of the recent UK landmark case on Israel and Jewish identity. link to mondoweiss.net

      the divestment is not related to the ‘identity’, national or otherwise of israel. it is related to investments and actions that very much discriminate, against palestinians..

      • Hostage
        April 11, 2013, 7:19 pm

        however it is against the law in NY (and probably other states) to discriminate based on “age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, or marital status”

        Correction: Subdivision 13 of section 296 of the New York executive law says that it “shall not apply to boycotts connected with any labor dispute or boycotts to protest unlawful discriminatory practices (like those outlined in the State Department’s annual country reports on the Occupied Palestinian territories and the ICJ’s findings of fact in the advisory opinion on the construction of the apartheid Wall in the occupied Palestinian territory; establishment of illegal Jewish-only settlements; and violation of fundamental rights to freedom of movement, access to adequate sources of food and water, access to adequate shelter, and access to health care and educational systems). See link to assembly.state.ny.us

        In short, Shurat HaDin is mistaken about the legal status of the territory in question and the legal bases for the boycott.

      • Annie Robbins
        April 11, 2013, 8:00 pm

        thanks hostage, i now understand the law cannot be used to fight ” Boycotts to protest unlawful discriminatory practices.”

      • Hostage
        April 11, 2013, 9:51 pm

        thanks hostage, i now understand the law cannot be used to fight ” Boycotts to protest unlawful discriminatory practices.”

        Or exploitative labor practices employed against Palestinians – take your pick. The ICJ also noted that the occupation, closures, and curfews had violated the Palestinians “right to work”.

        The bottom line is that they failed to state a claim upon which relief can be granted under either the state of federal statute.

    • lysias
      April 11, 2013, 6:49 pm

      The Hastings College of the Law is in San Francisco. I wonder if the case was decided under California law. Note that Shurat HaDin is using New York State and Federal law in its complaint about the prospective TIAA-CREF boycott.

      • ritzl
        April 11, 2013, 7:02 pm

        Hey lysias, OT, but I just wanted to say that you were right in your response to me about truthfulness. I was away for a while…

    • ritzl
      April 11, 2013, 6:58 pm

      My read of the anti-“Boycott Israel” laws here are that it cannot be an imposed contractual condition that to do business with “us” (Arab countries subscribing to the boycott) you cannot do business with Israel.

      It is a coerced BTB thing, and not a personal or individual business issue/legality.

      As far as I know in the US, any business can still decline to do business with whomever within domestic limits of non-discrimination. But international BTB efforts are totally discretionary. The issue in this discretionary sense is whether or not a biz declines to enter a market. Tough sell that.

      The Arab Boycott legal coercion context often gets conflated with normal biz practices by these types of pro-Israel groups. The problem is that well-funded Israeli lawfare costs innocent/conscientious biz money, so who’s going to fight it.

  4. Daniel Rich
    April 11, 2013, 5:16 pm

    @ Annie Robbins,

    In most cases 1 + 1 = 2.

    “You are not a Nice Jewish Boy”

    Ohio buys $42 million of Israel Bonds.

    Take it from there.

  5. Citizen
    April 13, 2013, 9:35 am

    So, in sum:
    Pension fund giant TIAA-CREF is seeking permission from the Security and Exchange Commission to allow it to deny shareholders the opportunity to vote on what would be the largest Israel/Palestine referendum to date in the United States. The resolution, filed by 200 CREF shareholders, urges TIAA-CREF to divest from companies that substantially contribute to or enable egregious violations of human rights, including companies whose business supports Israel’s illegal occupation of Palestinian territory.

    It was recently disclosed that CREF is being threatened with a lawsuit by Shurat HaDin (Israel Law Center) if CREF should submit the shareholder proposal for a democratic vote. Shurat HaDin claims that the resolution violates U.S. and New York state anti-boycott laws even though these laws have no application to human rights-inspired boycotts or to divestment resolutions. These peaceful forms of political pressure, central to the U.S. civil rights movement, have long been understood to be protected by the First Amendment’s free speech provision.

    Shurat HaDin is using a practice known as “lawfare.” This is a tactic of intimidation, using threats of legal action to coerce students, and now also TIAA-CREF, to refrain from using democratic processes to resolve issues. Shurat HaDin seeks to bar discussion of the serious human rights abuses associated with Israel’s occupation of Palestinian lands. It is deeply disappointing to see TIAA-CREF embrace that same perspective.

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