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U.S. Securities and Exchange Commission

Securities Exchange Act of 1934
Section 13(d) and Section 13(g)

December 30, 2008

Response of the Office of Mergers and Acquisitions
Division of Corporation Finance


Goldman, Sachs & Co.
Incoming letter dated December 30, 2008

Robert W. Reeder, Esq.
Sullivan & Cromwell LLP
125 Broad Street
New York, NY  10004-2498

Re: Calculation of Beneficial Ownership under Sections 13(d) and 13(g)

Dear Mr. Reeder,

We are responding to your letter dated December 30, 2008, addressed to Michele M. Anderson and Nicholas P. Panos, as supplemented by telephone conversations with the Staff, with regard to your request for interpretive guidance. To avoid having to recite or summarize the facts set forth in your letter, our response is attached to the enclosed photocopy of your letter. Capitalized and other defined terms in your letter have the same meaning in this letter.

Based upon the representations and facts presented in your letter, the Staff in the Division of Corporation Finance, without necessarily concurring with the analysis or conclusions set forth in your letter, has no objection if GS&Co. excludes the internal positions reflected in its Stock Record when calculating beneficial ownership for purposes of Rule 13d-3. Any different facts or circumstances may require a different conclusion. In determining not to object to GS&Co.’s proposed beneficial ownership calculation methodology, we considered the following facts, among others:

  • The internal positions GS&Co. seeks to exclude from its calculation of beneficial ownership are positions reflected on GS&Co.’s Stock Record as to which GS&Co. lacks voting and dispositive rights;
  • GS&Co.’s request for interpretive guidance only applies to internal proprietary positions;
  • GS&Co.’s request for interpretive guidance only extends to GS&Co.’s filing obligations under Section 13(d) or Section 13(g) and corresponding Exchange Act Rules 13d-1 and 13d-2 that occur after GS&Co. has determined to implement the new calculation methodology;
  • GS&Co.’s acknowledgment that the use of shares to meet delivery obligations will eliminate voting and dispositive rights in those shares, and GS&Co. will treat such use as a disposition for purposes of analyzing its amendment obligations under Section 13(d), Section 13(g) and corresponding Exchange Act Rule 13d-2;
  • GS&Co. has in place policies and procedures reasonably designed to ensure that the long and short positions in its Stock Record are properly reflected; and
  • GS&Co. has in place policies and procedures reasonably designed to ensure that its securities delivery obligations are met at the end of each business day.

This response is strictly limited to the Division of Corporation Finance’s position with respect to Goldman Sachs’ proposed methodology for calculating beneficial ownership. The Division expresses no legal conclusion with respect to any interpretive questions that GS&Co.’s adoption of a new methodology to calculate beneficial ownership may raise. Your attention is directed to the anti-fraud and anti-manipulation provisions of the Exchange Act. Responsibility for compliance with these and other provisions of the federal or state securities laws rests with GS&Co.


Michele M. Anderson
Office of Mergers and Acquisitions

Incoming Letter:

The Incoming Letter is in Acrobat format.


Modified: 01/15/2009