SECURITIES AND EXCHANGE COMMISSION
SECURITIES EXCHANGE ACT OF 1934
In the Matter of
Berkshire Hathaway Inc.
Order Denying Requests for Confidential Treatment
The Securities and Exchange Commission ("Commission") deems it appropriate and consistent with the public interest and protection of investors, pursuant to Sections 13(f)(3) and (4) of the Securities Exchange Act of 1934 ("Exchange Act"), to deny the requests for confidential treatment of information for the calendar quarters ended December 31, 2003, and March 31, 2004, filed by Berkshire Hathaway Inc. ("Berkshire") pursuant to Section 13(f) of the Exchange Act.
1. Berkshire's 2003 Annual Report describes Berkshire as a diversified holding company whose subsidiaries are engaged in numerous businesses, including property and casualty insurance and reinsurance.
2. Under Section 13(f)(5)(A) of the Exchange Act, Berkshire is an institutional investment manager that exercises investment discretion over $100 million or more in reportable securities, as defined in Rule 13f-1(c) under the Exchange Act.
3. Berkshire is subject to the reporting requirements of Rule 13f-1(a) under the Exchange Act, which requires Berkshire to file Form 13F reports with the Commission on a quarterly basis.
4. On February 13, 2004, Berkshire filed a request, pursuant to Rule 24b-2 under the Exchange Act, for confidential treatment of information required to be filed with the Commission pursuant to Section 13(f) of the Exchange Act ("Form 13F information") for the calendar quarter ended December 2003 ("December 2003 request"). Berkshire also filed a public Form 13F report for the calendar quarter ended December 2003.
5. On May 14, 2004, Berkshire filed a request, pursuant to Rule 24b-2 under the Exchange Act, for confidential treatment of Form 13F information for the calendar quarter ended March 2004 ("March 2004 request"). Berkshire also filed a public Form 13F report for the calendar quarter ended March 2004.
6. Berkshire's December 2003 and March 2004 requests each sought one year of confidential treatment for Berkshire's respective positions in the same security.
7. Rule 24b-2(b)(2)(ii) under the Exchange Act requires that a request for confidential treatment of Form 13F information contain "a statement of the grounds of objection referring to, and containing an analysis of, the applicable exemption(s) from disclosure under the Commission's rules and regulations adopted under the Freedom of Information Act [("FOIA")]."
8. Rule 200.80(b)(4) under the Commission's FOIA rules provides that the Commission generally will not publish or make available to any person matters that "[d]isclose trade secrets and commercial or financial information obtained from a person and privileged or confidential."
9. The Form 13F Confidential Treatment Instructions state that an institutional investment manager ("Manager") "requesting confidential treatment must provide enough factual support for its request to enable the Commission to make an informed judgment as to the merits of the request" and to "address all pertinent factors."
10. Form 13F Confidential Treatment Instruction 2.d. requires that a request that is based upon a claim that the subject information is confidential, commercial or financial information demonstrate, among other things, "that failure to grant the request for confidential treatment would be likely to cause substantial harm to the Manager's competitive position."
11. Rule 24b-2(b)(2)(ii) under the Exchange Act also requires that a request for confidential treatment of Form 13F information contain "a justification of the period of time for which confidential treatment is sought."
We have carefully considered Berkshire's December 2003 and March 2004 requests for confidential treatment. The requests are substantially similar to Berkshire's confidential treatment request for the quarter ended September 30, 2002, which the Commission denied. See Order Affirming the Determination of the Division of Investment Management in the Matter of Berkshire Hathaway, Inc., Securities Exchange Act Release No. 48368 (Aug. 20, 2003) ("August 2003 Order"). The rationale set forth in the August 2003 Order also applies here.
In our view, Berkshire's December 2003 and March 2004 requests are overly broad. Berkshire's requests do not demonstrate that the failure to grant its requests for confidential treatment would be likely to cause substantial harm to its competitive position, as required by the Instructions to Form 13F. Instead, Berkshire conclusorily asserts that "[d]isclosure can be expected to adversely impact market price, thus costing Berkshire money and putting at risk its ability to execute its strategy of buying .…" Furthermore, Berkshire does not attempt to quantify the extent to which it could be harmed by disclosure, and thus does not demonstrate that it would be likely to suffer "substantial" harm to its competitive position. Berkshire also does not provide any facts and analysis pertaining to the particular security at issue to demonstrate that disclosure of its position in that security would likely cause substantial harm to Berkshire's competitive position. Berkshire's requests also fail to justify the requested one-year period of confidential treatment. Simply put, Berkshire's requests do not explain why it reasonably believes that its program of acquisition will continue for a one-year period. Thus, Berkshire's requests fail to address both the status and expected duration of Berkshire's acquisition program in the security as required by Rule 24b-2 under the Exchange Act and the instructions to Form 13F.
Accordingly, the Commission denies Berkshire's requests because they fail to demonstrate that disclosure would be likely to cause substantial harm to Berkshire's competitive position, and fail to justify the requested one-year time period for confidential treatment.
IT IS ORDERED that, after considering Berkshire's requests for confidential treatment of Form 13F information, the Commission, pursuant to Sections 13(f)(3) and (4) of the Exchange Act, denies Berkshire's Form 13F confidential treatment requests for the calendar quarters ended December 2003 and March 2004.
By the Commission.
Jonathan G. Katz
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