January 13, 2012 Office of Chief Counsel Division of Corporate Finance U.S. Securities and Exchange Commission 100 F Street, NE Washington, D.C. 20549 Re: Apache Corporation - Omission of Stockholder Proposal Submitted by Mr. John Chevedden Ladies and Gentlemen: On behalf of Apache Corporation, a Delaware corporation (the "Company" or "Apache"), pursuant to Rule 14a-8(j) under the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), I am writing to inform you that Apache intends to omit from the proxy statement for its 2012 Annual Meeting of Stockholders (the "2012 Proxy Materials") a stockholder proposal (the "Proposal") received from John Chevedden (the "Proponentll ). Pursuant to Rule 14a-8(j), we have filed this notice with the Securities and Exchange Commission (the "Commission") no later than eighty calendar days before the date upon which the Company intends to file its definitive 2012 Proxy Materials with the Commission and concurrently sent copies of this correspondence to the Proponent. The Company is not, however, requesting that the Staff respond to this request. Instead, as is required by Rule 14a-8(j), the Company is simply notifying the Staff of the Company's plans to exclude the Proposal and including, as is required by the rule, an explanation of why the company believes that it may exclude the Proposal. Rule 14a-8(k) provides that stockholder proponents are required to send companies a copy of any correspondence that the proponents elect to submit to the Commission or the staff of the Division of Corporation Finance (the "Staff). Accordingly, we are taking this opportunity to inform the Proponent that if the Proponent elects to submit additional correspondence to the Commission or the Staff with respect to this Proposal, a copy of that correspondence should concurrently be furnished to the undersigned on behalf oftl~e Company pursuant to Rule 14a-8(k). ,.. APACHE CORPORATION 2000 POST OAK BlYIJ I sunE 100 I HOUSTON. 1X 11056-4400 TEl m3)29IHiIXXI Office of Chief Counsel Division of Corporate Finance January 13,2012 Page 2 I. The Proposal The Proposal requests that the Board of Directors "take the steps necessary so that each stockholder voting requirement in our charter and bylaws that calls for a greater than simple majority vote be changed to require a majority of the votes cast for and against the proposal, or a simple majority in compliance with applicable laws." A copy of the Proposal and the Supporting Statement is attached as Exhibit A. II. Basis for Exclusion We hereby inform the Staff that we intend to exclude the Proposal pursuant to Rille 14a-8(b) and Rule 14a-8(f)(1) because the Proponent failed to provide the required proof of stock ownership in response to the Company's proper request for that information. III. Analysis The Proposal May Be Excluded Under Rule 14a'8(b) And Rule 14a-8(1)(1) Because The Proponent Failed To Establish The Requisite Eligibility To Submit The Proposal A. Background The Proposal, dated November 30, 2011, was received by the Company on November 30, 201l. See Exhibit A. Attached to the Proposal was a letter from a Senior Portfolio Manager of RAM Trust Services ("RTSII which stated that the Proponent was a client of ), RTS and that he owned no fewer than 50 shares of Apache stock and has held them continuously since November 7, 2008 (the "RTS Letter"). The letter also indicated that RTS acted as his custodian for these shares and that Northern Trust Company, a direct participant in the Depository Tmst Company, acted as a master custodian for RTS. Enclosed with the RTS Letter was a letter from Northern Trust, which stated that ''The Northern Trust Company is the custodian for Ram Trust Services. As of November 29, 2011, Ram Trust Services held 163 shares of Apache Corp. Company CUSIP # 037411105 .... The above account has continuously held at least 50 shares of APA common stock since at least November 7,2008:' In addition, the RTS Letter invited the Company to contact the signatory of the RTS letter ifRTS could "be of further assistance, or if you should require additional documentation related to Mr. Chevedden's proposal." Under the recently published Staff Legal Bulletin No. 14F ("SLB 14F"), only DTC participants should be viewed as "record" holders of securities that are deposited with DTC. Office of Chief Counsel Division ofCoi-porate Finance January 13, 2012 Page 3 Further, SLB 14F indicates that a stockholder that owns shares through a bank or broker that is not a DTC palticipant must obtain and submit two statements regarding the stockholder's ownership-one from the stockholder's bank or broker confirming the stockholder's ownership, and one from the DTC participant through which the securities are held confirming the ownership oft he stockholder's bank or broker. Based on a comparison ofSLB 14F and publicly available information regarding RTS, the Company concluded that the letter from RTS did not comply with the guidance provided by SLB 14F. Accordingly, the Company sent the Proponent a deficiency notice dated December 9, 2011 (the "Deficiency Notice"). See Exhibit B. In addition to the Deficiency Notice, the Company accepted RTS's invitation and sent RTS a letter dated December 6, 2011 requesting more information regarding the Proponent's purported ownership of Company stock (the "Supplemental Information Request"). See Exhibit D. The Deficiency Notice informed the Proponent that he had failed to comply with the procedural requirements of Rule 14a-8 and SLB 14F and explained how he could cure the procedural deficiency. In pertinent part, the Deficiency Notice stated: The provision of [the letters from RTS and Northern Trust] does not satisfy the requirements ofSLB 14F because the letter from RTS was not provided by a bank or broker under prevailing law. In the letter, RTS states that you are a client of RTS, and that it serves as a custodian for Apache's shares. RTS is not a broker; it is an investment advisor, and therefore, is barred from serving as a broker or custodian. In Apache Corp. v Chevedden, 696 F.Supp 2d 723 (S.D. Tex. 2010), the court analyzed Apache's claim that RTS is not a broker and found that "Apache is correct that RTS does not appear on the SEC's list of registered broker-dealers, on the FINRA membership list, or on the SIPC membership list." Further, the court stated that, IIRTS is not a participant in the DTC. It is not a registered broker with the SEC, or the self regulating industry organizations FINRA and SIPC." Based on the court's ruling, we have reviewed the database of registered broker dealers maintained by F1NRA, as well as the Jist ofDTC participants avaiJable at http://www.dtcc.coml downloadsimembershipidirectories/dtcialpha.pdf. As was the case in the KBR litigation, RAM Trust Services is not listed as a registered broker dealer or as a DTC participant. While you have provided a letter from DTC pruticipant, Northern Trust, you have failed to provide a letter from a bank: or broker. Therefore, until you provide a letter ft:om a bank or broker, you have failed to provide adequate proof of ownership. As Office of Chief Counsel Division of Corporate Finance January 13,2012 Page 4 required by Rule 14a-8(f), you must provide us with proper proof of ownership as set forth in SLB 14F within 14 days of your receipt of this letter. We have attached to this notice of defect copies of Ru1e 14a-8 and SLB 14F for your convenience. RTS responded on behalf of the Proponent by letter December 13, 2011. See Exhibit C. In that response, RTS stated that Please be advised that Ram Trust Services is not an "investment advisor", as you suggest. Rather it is a non-depository trust company organized in 1997 under Maine Revised Statutes Title 9-8: Financial Institutions, and regulated as such by the Maine Bureau of Financial Institutions. Ram Trust Services is, therefore, a "bank" within the meaning of Section 202(2)(iii) of the Investment Advisers Act of 1940 and Section 3(a)(6) of the Securities Exchange Act of 1934: "any other banking institution, savings association or trust company, whether incorporated or not, doing business under the laws of any State or ofthe United States, a substantial portion of the business of which consists of receiving deposits or exercising fiduciary powers similar to those permitted to national banks under the authority oft he Comptroller of the Currency. ... and which is supervised and examined by State or Federal authority having supervision over banks and which is not operated for the purpose of evading the provisions of this title ... " Noting that the Company had serious concems regarding the RTS Letter, the law firm of Susman Godfrey LLP, on behalf of the Company, sent RTS the Supplemental Infonnation Request asking for documentation (e.g., monthly, quarterly or annual account statements) from RTS documentiJ?g the Proponent and RTS's ownership of Company stock continuously since November 2008. The request also asked for communications by and among RTS, Northern Trust and the Proponent concerning the Company or its shares as well as any beneficial ownership reports filed by Ram Trust Co., Ram Trust Services, or Atlantic Financial Services with the SEC. Finally, noting that it has been documented that the Proponent has completed proof of ownership letters purportedly sent on behalf of his brokers, the Supplemental Information Request asked whether RTS has provided Chevedden with letters containing blank spaces to be filled in concerning Chevedden's purported ownership of securities in Apache or any other public company with securities registered tmder Section 12 or 15(d) of the Exchange Act. Unfortunately, RTS's response to this reasonable request was included in a letter dated December 9,201 I, which simply stated the following: Office of Chief Counsel Division of Corporate Finance January 13,2012 PageS Thank you for your letter dated December 6, 2011. We believe that the issue is whether there is a defect in the letters dated November 30, 2011 from ourselves to John Chevedden and from Northern Trust to John Chevedden. Please advise whether there is any defect in these submissions. See Exhibit E. In response to the letter from RTS, by letter dated December 22, 20 II, Susman Godfrey LLP, on behalf of the Company, again requested that RTS provide the information requested in the Supplemental Information Request: In its November 30 letter, RTS stated that if additional documentation to establish proof of ownership for the proposal in question was needed, we should ask you for it. We did just that. Yet RTS's reply provided no answers to any of our questions and provided no documents. We asked for some pretty basic infonnation that ought to be easy for RTS to produce (assuming the required ownership exists), so RTS's refusal to provide this information-which RTS itself offered-appears to reinforce the deficiency of the response to our proof of ownership request. We would like to give RTS this opportunity to reconsider. See Exhibit F. Neither RTS nor the Proponent responded to this request. As a result, RTS's December 9, 2011 letter was the last communication from the Proponent or RTS regarding the Proposal. For the reasons stated below, the information provided by the Proponent and RTS does not satisfy the requirements of Rule 14a-8(b) (2) and the Proposal is thus excludable pursuant to Rule 14a-8(f). B. Discllssion The Proposal may be properly excluded from the Proxy Materials in accordance with Rule 14a-8 for two reasons. First, RTS is not a broker or a bank. Second, the exclusion of the Proposal is dictated by a final decision of a federal district court that is binding upon the Company and Proponent. 1. The Proposal May Be Excluded Pursuant to Rule 14a-8(b) and Rule 14a-8(f)(1) Because RTS Is not A Bank or a Broker Office of Chief Counsel Division of Corporate Finance January 13, 2012 Page 6 The Proponent has failed to provide the Company, within the time period set forth in Rule 14a-8(f)(l), the requisite verification that the Proponent satisfies the eligibility requirements of Rule 14a-8(b). Rule 14a-8(b) provides that in order to be eligible to submit the proposal, the Proponent must have continuously held at least $2,000 in market value. or 1% oft he company's securities entitled to be voted on the proposal at the meeting for at least one year by the date on which the Proposal is submitted. Rule 14a-8(b) (2) provides that the Proponent, who is not a registered holder of the Company's securities, must prove his eligibility at the time of his submission in one of two ways: he must submit a written statement from the "record" holder of his llecurities (usually a broker or baIik) verifying that. at the time he submitted the Proposal, he continuously held the securities for at least one year, or he must submit copies of Schedules 13D or 13G or a Form 3, 4 or 5. . SLB 14F interprets Rule 14a-8 to require two written statements in circumstances where a stockholder holds shares through a bank or broker that is not the record holder ofthe shares at issue: one from the bank or broker through which the stockholder owns shares, and a second from the DTC participant through which a stockholder's bank or broker holds shares. The Proponent has provided only one of these two required statements - the letter from a DTC participant. As will be discussed below, however, RTS is neither a broker nor a bank as is explicitly required by SLB 14F. As a result, the Proponent has failed to provide one of the required forms ofp roof of ownership - a letter from a bank or broker verifying his ownership. RTS Is Not a Registered Broker Dealer under Federal Law To determine whether RTS is a registered broker dealer, we conducted a search for "Ram Trust Services" on the FINRA website. This search indicated that no entity identified as Ram Trust Services is a registered broker dealer. To be comprehensive, we also conducted a search for "Ram Trust" on the FINRA website, which produced a result identifying "Ram Trust Brokers, Inc." as a registered entity. The FINRA entry included a link to Atlantic Financial Services, which is a subsidiary ofRTS. See the FINRA BrokerCheck Firm Summary, attached hereto as Exhibit G. The FINRA repOlt also indicates that "Atlantic Financial Services of Maine, Inc. is the wholly owned subsidiary of Ram Trust Services." We also conducted a search of the database of broker dealers maintained by SIPC. This search did not result in the identification of any entities included in that database under the name Ram Tmst. Based on this infonnation, as originally indicated to the . Proponent, RTS is not a registered broker dealer. Office of Chief Counsel Division of Corporate Finance January 13, 2012 Page 7 RTS Is Not a Bank under State or Federal Law In its response to the Deficiency Notice, RTS claims that RTS is a ''non-depository trust company organized in 1997 under Maine Revised Statutes Title 9-8: Financial Institutions, and regulated as such by the Maine Bureau of Financial Institutions;" A similar claim is made on RTS's website: "Ram Trust Services is a state-chartered non-depository Tlllst Company based in Portland, Maine." This, however is not correct. In a 2009 Annual Report from the Superintendent of the Bureau of Financial Institutions to the Legislature the Maine Bureau of Financial Institutions, Ram Tlllst Company (but not RTS) is a registered non-depository trust company. See Exhibit H.l RTS, however, is not listed as a registered non-depository trust company. As the report from the Maine Bureau of Financial Institutions clearly indicates, RAM Tlllst Company, but not RTS, is a bank for the purposes of state and federal law. This is corroborated by a review of the Maine Bureau of Financial Institutions website, which lists the state chartered financial institutions it regulates. Ram Trust Company, but not RTS, is listed as a supervised institution on that list. See Exhibit I. This distinction is important, since the defmition of , 'bank" upon which RTS relies under the Exchange Act only applies to a banking institution "doing business under the laws of any State or of the United States, a substantial portion oft he business of which consists of receiving deposits or exercising fiduciary powers ... and which is supervised and examined by State or Federal authority having supervision over banks or savings associations .. _" See Section 3(a)(6) of the Exchange Act. Here, it does not appear that RTS is a banking institution that is supervised by the applicable state authority_ As a general matter, all banks are supervised by either the relevant state authority or a federal bank regulator. To be comprehensive, therefore, we also checked to see whether RTS, RAM Trust Company, or Atlantic Financial Services was registered as a bank with any of the relevant federal bank regulators - the Office of the Comptroller of the Currency, the Federal Reserve Bank and the Federal Deposit Insurance Corporation. We reviewed the databases maintained by each of these entities and found that none ofRTS, RAM Trust Company, or Atlantic Financial Services is identified in such databases as a bank.2 Based on the fact that RTS is not I Page 47 ofthe report lists RAM Trust Company (not RTS) as a limited purpose bank authorized to do business in Maine. <I Specifically, we reviewed the FDIC's ''bank find" service (available at . http://www2.fdic.gov/IDASP/main_bankfind.asp);theOCC·slist orOCC-supervised banks (available at http://www.occ.treas.gov/topicsllicensinglnational-bank-listslindex-national-bank-lists.html ); the Federal Reserve Bank's database of banks that it supervises (available at http://www.ffiec.gov/nicpubweb/nicweb/nichome.aspx);andtheFederaIReserveBankofBoston·slist of Office of Chief Counsel Division of Corporate Finance January 13, 2012 Page 8 identified as a bank in any ofthe databases, RTS cannot claim to be a ''bank'' for the purposes of Rule 14a-8. RTS Appears to Be an Investment Advisor In contrast to its December 13, 2011 letter, RTS appears to be an investment advisor, and as such, cannot provide valid proof of ownership under Rule 14a-8. On March 15, 2005, RTS and certain of its investment advisers signed a Consent Agreement with the State of Maine Office of Securities, agreeing that RTS is "an investment adviser company, and identifying several RTS employees, including Michael P. Wood as "investment advisor representatives." In the Consent Agreement, RTS agreed that its employees would comply with all licensing and other legal requirements governing investment advisors in the State of Maine. The Consent Agreement makes clear that RTS is "an investment adviser company." Further, on its website, RTS says that it "provides superior, highly personalized and fully integrated financial services primarily to high net worth families, individuals and private foundations," that "Unlike many investment managers, Ram Trust Services is never content to rely solely on outside sources of information in assessing our investments," and refers to itself as "investment advisors who invest in tandem with our clients." See www.ramtrust.comlstrategy.htm. While Ram Trust calls itself "investment managers" and "investment advisors" on its website, it does not anywhere call itself a "broker." An Investment Advisor May Not Provide Proofo fO wnership Under Rule 14a-8 Staff Legal Bulletin 14 states that a written statement from a stockholder's investment advisor is insufficient evidence of ownership unless the investment advisor is also the record holder ofthe shares. See Staff Legal Bulletin No. -14 (July 13,2001), Section C.1.c.l: Does a written statement from the shareholder's investment adviser verifying that the shareholder held the securities continuously for at least one year before submitting the proposal demonstrate sufficiently continuous ownership of the securities? The written statement must be fl:om the record holder of the shareholder's securities, which is usually a broker or bank. Therefore, unless the investment adviser is also the record holder, the statement would be insufficient under the rule. supervised banks in Massachusetts, Maine, Connecticut, and New Hampsbire (available at http://www.bos.frb.orglbankinfo/membersllist.htm ). Office of Chief Counsel Division of Corporate Finance January 13, 2012 Page 9 See also Clear Channel Communications (Feb. 9, 2006) (granting no-action relief under Rule 14a-8(b) where the proponent submitted ownership verification from an" investment adviser that was not a record holder). Since the Proponent failed to provide proof of ownership from a broker or bank verifying the Proponent's ownership of Apache shares, the Proponent has failed to establish, within the 14 days prescribed by Rule 14a-8(f), his eligibility to submit the Proposal. The Staff has granted no action relief previously where the Proponent attempted to establish by providing documentary evidence of ownership by a person other than the "record" holder. See e.g. JP Morgan Chase & Co. (Feb. 15, 2008); Verizon Communications, Inc. (Jan. 25, 2008); The McGraw Hill Companies, Inc. (Mar. 12, 2007); MeadWestvaco Corporation (Mar. 12, 2007). The fact that an entity affiliated with RTS maybe a ''bank'' under Maine law does not change the analysis. The Staff previously has granted no-action relief in circumstances where the wrong entity provided information intended to satisfy the informational requirements of Rule 14a-8. For example, in Coca-Cola Company (February 4, 2008) the SEC granted no-action relief under Rule 14a-8(b) where the entity identified in the proof of ownership from the Proponent was different than the entity that had submitted the proposal the proposal was submitted by The Great Neck Capital Appreciation LTD Partnership, however the broker's letter related to ownership by The Great Neck Capital Appreciation Investment Partnership, L.P. Similarly, in Energen Corp. (Feb. 22, 2011), the SEC granted no-action relief with respect to a proposal submitted by the Calvelt Group on behalf of affiliated funds with similar names, but that were separate entities and where the Calvert Group, but not the funds, provided representations about the funds' plans to hold company shares through the date of the company's annual meeting of stockholders. See also Chesapeake Energy Corp. (Apr. 1,2010) (granting no-action relief under Rule 14a-8 where an investment adviser submitted stockholder proposals on behalf of accounts of affiliated funds). Similar to the situations addressed by these no-action letters, the documentation that the Proponent has provided to the Company under Rule 14a-8(b) comes from an entity that cannot provide documentation that satisfies the requirements of Rule 14a-S. In each of the letters noted above, the SEC granted no-action relief. We believe that Apache is entitled to exclude the Proposal :fi:om,its proxy materials on similar grounds. 2. The Proposal May be Excluded Because Federal Court Decisions Dictate its Exclusion. Office of Chief Counsel Division of Corporate 'Finance January 13,2012 Page 10 Two court decisions, KBR v. Chevedden and Apache Corp. v. Chevedden dictate that Apache is entitled to exclude the Proposal from its proxy materials. In KBR v. Chevedden, a federal district court ruled that RTS could not validate the ownership of the Proponent in connection with a proposal that he submitted to KBR in 2010. See KBR v. Chevedden, 2011 U.S. Dist. LEXIS 36431 (S.D. Tex. Apr. 4, 2011). The court reached this decision because RTS was not a registered broker dealer or a DTC participant. Specifically, and as is still the case, RTS was not registered with FINRA, SIPC, or the SEC as a broker, but was rather registered as an investment advisor lmder Maine law, and its website advertised itself as such. Similarly, in Apache Corp. v. Chevedden, a federal district court explicitly rejected an interpretation that the phrase "record holder is usually a bank or broker" meant that letters from RTS describing itself as an introducing broker were sufficient proof of ownership. The Apache court rejected this argument on the basis that it "would require companies to accept any letter purporting to come from an introducing broker, that names a DTC participating member with a position in the company, regardless of whether the broker was registered or the letter raised questions" as to proof of ownership. See Apache Corp. v. Chevedden. C.A. No. H-IO-0076, 2010 U.S. Dist. LEXIS 21906 (S.D. Tex. March 10,2010) (''The only issue before this court is whether the earlier letters from RTS-an unregistered entity that is not a DTC participant-were sufficient to prove eligibility under Rule 14a-8(b) (2), particularly when the company has identified grounds for believing that the proof of eligibility is unreliable. This court concludes that the December 2009 RTS letters are not sufficient"). The Apache court found that such an interpretation would reduce the requirement to simply provide a letter from "a self-described introducing broker." Thus, the court rejected the RTS letter as sufficient proof of ownership. The court in the KBR case reached the same conclusion. The same issues about RTS's status as a self-proclaimed broker or bank exist here. As was the case in those rulings, all the evidence indicates that RTS is not a broker or a bank. TheKBR and Apache decisions are binding on the Proponent and the Company and the Staff should defer to them. The Staff has repeatedly acknowledged that, "a determination reached in such letters 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 a stockholder proposal in its proxy materials. ,,3 ThllS, even if the SEC 3 See Statement oflllfonnal Procedures for the Rendering of Staff Advice with Respect to S~areholder Proposals, Exchange Act Release No. 12,599, 1976-1977 Transfer Binder Fed. Sec. L. Rep. (CCH) ';80,635, at 86,606 (July 7, 1976) ("rr]he staffs views are advisory only, and management's decision to accept or reject II