SEC Staff Letter: College Retirement Equities Fund - Buchman

Securities Exchange Act of 1934 – Section 14(a) and Rule 14a-8 College Retirement Equities Fund – Buchman May 3, 2004 Lisa Snow, Esq. Vice President and Chief Counsel College Retirement Equities Fund 730 Third Avenue New York, NY 10017-3206 Re: College Retirement Equities Fund (“Fund”) Shareholder Proposal of Timothy H. Buchman

Dear Ms. Snow:
In a letter dated February 24, 2004, you notified the staff of the Securities and Exchange Commission (“Commission”) that the Fund intends to exclude from its proxy materials for its 2004 annual meeting a shareholder proposal submitted by letter dated February 9, 2004, from Timothy H. Buchman.1 The proposal provides:
THEREFORE BE IT RESOLVED that, beginning with the next Directors’ election following the adoption of this resolution, the primary fiduciary duty of the CREF Board of Directors ought to be first and foremost to the participants. You requested confirmation that we would not recommend enforcement action to the Commission if the Fund excludes the Proposal in reliance on Rule 14a-8(i)(6) under the Securities Exchange Act of 1934. Rule 14a-8(i)(6) permits a company to exclude a shareholder proposal from its proxy statement if the company would lack the power or authority to implement the proposal. You note that the CREF Board of Trustees “has not power to define for itself the fiduciary duties already defined for it.” There appears to be some basis for your view that the Fund may exclude the proposal under Rule 14a-8(i)(6) as beyond the power of CREF to implement. Accordingly, we will not recommend enforcement action to the Commission if the Fund omits the proposal from its proxy materials in reliance on Rule 14a-8(i)(6). Because our position is based upon the facts recited in your letter, different facts or conditions or additional facts or conditions may require a different conclusion. Further, this response only expresses our position on enforcement action under Rule 14a-8 and does not express any legal conclusion on the issues presented. In considering your request, we have not found it necessary to reach the other bases for omission upon which you rely.