BERKSHIRE
HATHAWAY
ING.
December
11
, 2024
3555
FARNAM
STREET
SUITE
1440
OMAHA,
NEBRASKA
68131
TELEPHONE
(402)
346-1400
FAX
(402)
348-3375
VIA ONLINE SHAREHOLDER PROPOSAL FORM
Office
of
Chief Counsel
Division
of
Corporation Finance
U.S. Securities and Exchange Commission
100 F Street, N
.E.
Washington, D.C. 20549
Re:
Shareholder Proposal to Berkshire Hathaway Inc. by Myra Young
Ladies and Gentlemen:
This letter is submitted on behalf
of
Berkshire Hathaway Inc., a Delaware corporation (the
"Company") pursuant to Rule 14a-8(j) under the Securities Exchange Act
of
1934,
as
amended
(the "Exchange Act"), to notify the Securities and Exchange Commission (the "Commission")
of
the Company's intention to exclude a shareholder proposal and related supporting statement
submitted by Myra Young (the "Proponent") from its Proxy Materials for its 2025 Annual
Meeting
of
Shareholders. The Company received the Proposal on November 15, 2024. For the
reasons set forth below, we request confirmation that the Division
of
Corporation Finance (the
("Staff') will not recommend to the Commission that enforcement action be taken
if
the
Company excludes the Proposal from its 2025 Proxy Materials in reliance on the provisions
of
Rule 14a-8(i)(10) under the Exchange Act, as described below.
This submission is being delivered via the Commission's online shareholder proposal portal.
As
required by Rule l 4a-8G), this letter and its attachments are concurrently being sent to the
Proponent and her delegated representative
as
notice
of
the Company's intent to omit the
Proposal from its 2025 Proxy Materials no later than eighty (80) calendar days before March 14,
2025, the date the Company currently intends to file its definitive Proxy Materials with the
Commission. Rule 14a-8(k) and Staff Legal Bulletin No.
14D
(Nov.
7,
2008)
provide
that
shareholder proponents are required to send companies a copy
of
any correspondence that the
proponents elect to submit to the Commission or Staff. Accordingly, we hereby notify the
Proponents that
if
the Proponent elects to submit additional correspondence to the Commission
or the Staff in response to this letter, a copy
of
that correspondence should be concurrently
provided to the undersigned on behalf
of
the Company.
Office
of
Chief Counsel
Division
of
Corporation Finance
December
11,
2024
Page2
The
Proposal
states:
THE PROPOSAL
RESOLVED:
Shareholders request that Berkshire Hathaway designate a Board
Committee to oversee the Company's diversity and inclusion strategy across its holding
comparues.
The Supporting Statement to the Proposal references previously submitted, unsuccessful
proposals filed three successive years and receiving less than 25%
of
the total votes; those
proposals asked that the Company "release aggregated promotion, hiring, and retention rate data
by gender, race, and ethnicity for its diverse employees." The Supporting Statement asserts that
the Company "has not made this information public, thus investors remain without assurance that
diversity, equity and inclusion (DEI) challenges are being well managed at Berkshire
companies." Further, the Supporting Statement asserts that "[T]he Board remains responsible for
ensuring the success
of
its companies and their ongoing contribution to shareholder value.
Human capital oversight at the Board level will empower Berkshire's companies to ensure
meritocratic workplaces that allow each employee to excel on the basis
of
their own merits,
regardless
of
their race, gender or other diversity characteristic."
A copy
of
the Proposal and the Suppo1iing Statement is attached to this letter
as
Exhibit
A.
BASIS
FOR
EXCLUSION
The Company hereby respectfully requests that the Staff concur in its view that the Proposal may
be excluded from the 2025 Proxy Materials pursuant to Rule 14a-8(i)(10) because the Company
has substantially implemented the Proposal.
ANALYSIS
The Proposal May Be Excluded Under Rule 14a-8(i)(10) Because the Company Has
Substantially Implemented the Proposal.
As set forth in the Company's Audit Committee Charter, the function
of
the Company's Audit
Committee is oversight.
1
In 2022, the Company amended its Audit Committee Charter to clarify
the
Audit Committee's duties and responsibilities, including its responsibility to "discuss
guidelines and policies governing the process by which senior management
of
the Company and
the relevant departments
of
the Company assess and manage the Company's exposure to risk,
including cybersecurity threats and environmental and social risks such as climate change
and
diversity,
respectively ... "
1
The
full
Audit
Committee
Charter
is
publicly
available
at
https:
/
/berkshirehathaway.com/govern/audit.pdf.
Office
of
Chief Counsel
Division
of
Corporation Finance
December
11,
2024
Page3
Consistent with its Charter, the Audit Committee meets once every quarter, or more frequently
if
circumstances dictate, and its members discuss guidelines and policies governing the process by
which senior management
of
the Company and the relevant departments
of
the
Company assess
and manage the Company's exposure to risk, including diversity. Accordingly, as addressed in
more detail below, the Company and the Company's Board have already undertaken the essential
actions and addressed the substantive concerns raised in the Proposal and Supporting Statement,
and therefore have substantially implemented the Proposal.
A. The Substantial Implementation Standard
Rule l 4a-8(i)(l 0) permits a company to exclude a shareholder proposal from its proxy materials
if
the company has "substantially implemented" the proposal. The Commission, interpreting the
predecessor to Rule 14a-8(i)(l0), stated that the purpose
of
the Rule 14a-8(i)(l0) exclusion is to
"avoid the possibility
of
shareholders having to consider matters which have already been
favorably acted upon by management." Commission Release No. 34-12598 (July
7,
1976).
While the exclusion was originally interpreted to allow exclusion
of
a shareholder proposal only
when the proposal was "fully effected" by the company, the Commission has revised its
approach over time to allow exclusion
of
proposals that have been "substantially implemented."
Commission Release No. 34-20091 (August 16, 1983) and Commission Release No. 40018
(May 21, 1998). The Staff has provided no-action relief under Rule 14a-8(i)(10) when a
company has substantially implemented, and therefore satisfied, the "essential objective"
of
a
proposal, even
if
the company did not take the exact action requested by the proponent, did not
implement the proposal in every detail, or exercised discretion in determining how to implement
the proposal.
See, e.g., Salesforce.com,
Inc.
(Apr. 20, 2021);
Apple Inc.
(Dec.
17
, 2020);
Wal-
Mart Stores,
Inc.
(Mar. 25, 2015;
Entergy Corp.
(Feb. 14, 2014); and
Exelon Corp.
(Feb. 26,
2010).
The Staff has concurred that, when substantially implementing a shareholder proposal,
companies can address aspects
of
implementation in ways that may differ from the manner in
which the shareholder proponent would implement the proposal.
B. The Company Already Has Designated a Board Committee to Oversee the Company
s
Diversity
and
Inclusion Strategy
The Proposal and Supporting Statement repeat the history
of
previous, unsuccessful, shareholder
proposals
filed
by
the
Proponent.
That
the
Company
has
not
publicly disclosed diversity
data
(aggregated promotion, hiring and retention rate data by gender, race, and ethnicity for its diverse
employees to understand the effectiveness
of
the Company's efforts) does not mean that the
Company does not have a Board Committee to oversee the Company's diversity and inclusion
strategy.
In
fact,
as
evidenced by the Audit Committee Charter, the Company has "substantially
implemented" the Proposal for nearly three years and the Proposal may be excluded from the
Company's Proxy Statement. The Company has satisfied the essential objective
of
the Proposal.
Office
of
Chief Counsel
Division
of
Corporation Finance
December
11,
2024
Page4
Accordingly, we ask that the Staff concur that the Company may exclude the Proponent's
Proposal under Rule 14a-8(i)(l 0).
CONCLUSION
For the foregoing reasons, we believe that the Proponent's Proposal may be omitted from the
2025 Proxy Materials and respectfully request that the Staff confirm that it will not recommend
any enforcement action
if
the Proponent's Proposal is excluded.
The Company would be happy to provide you with any additional information and answer any
questions you may have regarding this matter.
You
may direct such requests to me at
CSWoollums@brka.com or (563) 209-3738.
Respectfully submitted,
c
f:~
~
ESG Advisor
Berkshire Hathaway Inc.
Docusign
Envelope
ID:
7D2D80B0-D42F-4D79-AE91-C13A2281DDA5
VIA
EMAIL
November 15, 2024
Marc
D.
Hamburg
Senior
Vice
President,
Chief
Financial Officer,
and Secretary
Berkshire Hathaway Inc
Dear
Mr.
Hamburg,
Exhibit A
I
am
submitting the attached shareholder proposal, which I support, for a vote at Berkshire
Hathaway Inc 2025 annual shareholder meeting. The proposal requests that Berkshire
Hathaway's Board designate a Board Committee to oversee the Company's diversity and
inclusion strategy across its holding companies.
•
•
I will meet Rule 14a-8 requirements, including retaining continuous ownership of the stock, at
the required value, until after the date
of
the Company's next annual shareholder meeting
in
2025. These shares are held by Myra K Young Roth IRA account.
My submitted format, with the shareholder-supplied emphasis, is intended to be used for
definitive proxy publication.
I
am
available to meet with Berkshire Hathaway's representative at the following times:
•
12/3/2024
at
1
pm
Central Time
•
12/4/2024
at
1pm
Central Time
This letter confirms that I am delegating Meredith Benton to act as my agent regarding
this Rule 14a-8 proposal, including engagements, and presentation at the forthcoming
shareholder meeting. Please direct all future communications regarding my rule 14a-B
proposal to Meredith Benton
at
■■■■■•
to facilitate prompt
communication. Please send all correspondence
with
a copy
to
Your consideration and that of the Board of Directors is appreciated in support of the long-term
performance of Berkshire Hathaway. Please confirm receipt of my proposal promptly by
emailing
me
at
Sincerely,
~
Slgntdby:
AwrA-q~
M
-FFt9M8595084FC
...
yra Young
Shareholder
Enclosures
•
Shareholder Proposal
WHEREAS:
Additional context and background for this request can be found
at:
https:1/
wh
istlestop
.
ca
p
ital/BRK
-
Each
year
since
2021
,
over
one-third
of
Berkshire's
independent
shareholders
supported
a
shareholder
resolution
asking
that
it
release
aggregated
promotion,
hiring,
and
retention
rate
data by gender, race, and ethnicity for its diverse employees. This data is needed to understand
the effectiveness
of
the Berkshire companies' efforts to ensure meritocratic workplaces.
Berkshire has not made this information public, thus investors remain without assurance that
diversity, equity, and inclusion (DEi) challenges are being well managed at Berkshire
companies.
Studies have shown that employees often face discrimination in hiring and promotion as a result
of their gender or race.
1
Warren Buffet spoke to this at Berkshire's 2023 annual meeting, stating
that "if [I] had been born Black, a woman,
or
in
a different country [I] wouldn't nearly [have]
enjoyed the same type of life [I] have]."
Effective DEi programs are linked to significant benefits
in
financial performance, innovation,
risk management, and reputation.
•
McKinsey studies have consistently found that companies with greater diversity
in
corporate leadership are more likely to outperform peers on profitability.
•
A review of over 1,600 companies found statistically significant positive correlations
between increased manager diversity and key financial performance indicators,
including: return
on
equity, return on invested capital, and revenue growth, particularly
in
the financial sector.
2
•
A 2024 meta-analysis found companies with diversity and inclusion initiatives experience
a range
of
benefits that include increased innovation, enhanced employee engagement
and satisfaction, and improved decision-making.
3
•
American Banker,
PwC,
Bloomberg,
and others have also emphasized the importance
of
diversity, equity, and inclusion to a company's financial performance.
4
The benefits
of
diverse and inclusive teams include access to top talent, widened understanding
of
consumer preferences, broadened leadership skills, and improved risk management.
Racial and gender discrimination are also prohibited under the Civil Rights Act
of
1964. Poor
human capital management can lead to costly discrimination lawsuits and brand damage. As
1
https
:
//ww'w
.
bloomb
e
rg.com/opinion/featu
res/2024-
07
-
29/white
-
men
-
the-most
-
likely
-
to
-
qet-h
i
red-ev
e
n-with-dei-finds
-
research
;
https
:
//mitsloan
.
mit.edu/
i
deas-made
-
to
-
matter/women
-ar
e-less
-li
kely-men
-
to
-
be
-
promoted
-
her
e
s-one-
reason-why
2
https
:
//ww'w
.
asyousow
.
org/report-page/2023
-
capturinq
-
the-divers
i
ty-benefit
3
https://ww'w.researchgate.net/publication/380115625
ENHANCING
ORGANIZATIONAL
PERFOR
M
ANCE
THRO
UGH
DIVERSITY
AND
INCLUSION
INI
TI
ATIVES
A
META-ANALYSIS
4
https://ww'w.americanbanker
.
com/diversity-&-inclusion
-yi
elds-strongest-retums
;
https://ww'w
.
pwc
.
com/us/en/qovemance-insights-cen
t
er/annual-comorate-directors-survey/assets/pwc
-2017-
annual
-
corporate-directors-survey
.
pdf
;
https://www.bloomberg
.
com/news/art
i
cles/2019-09-17
/when-companies-improve-
t
heir-divers
i
ty-stock
-
prices-qet
-a-
boost
examples, within Berkshire companies: HomeServices
of
America paid $24.4 million to resolve
allegations of lending discrimination and Geico paid $6 million to settle a complaint it
discriminated against women and others.
5
Berkshire
is
a
decentralized
holding
company.
However
,
the
Board
remains
responsible
for
ensuring the success
of
its companies and their ongoing contribution to shareholder value.
Human capital oversight
at
the Board level will empower Berkshire's companies to ensure
meritocratic workplaces that allow each employee to excel
on
the basis
of
their own merits,
regardless of their race, gender or other diversity characteristic.
RESOLVED:
Shareholders request that Berkshire Hathaway designate a Board Committee
to
oversee
the
Company's diversity and inclusion strategy across its holding companies.
5
https://www.wsj.com/articles/berkshire-hathaway-owned-mortgaqe-lender-settles-redlininq-alleqations-
11658940230; https://www.sfchronicle.com/business/networth/a.rticle/Geico-pays-6M-to-settle-insurance-
discrimination-6465467
.
php