Berkshire Hathaway Gets SEC Heads Up to Bar Shareholder Proposal

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In January, the U.S. Securities and Exchange Commission (SEC) told Berkshire Hathaway Inc. they had no objection if the company omitted two corporate governance proposals from its 2012 annual proxy.

The proposal story started in April 2011 when an individual submitted two of them to Warren Buffet’s company, asking it to fire employees for certain ethics violations and subsequently requiring top Berkshire employees to approve “high risk” corporate policies, according to MarketWatch.

The letter writer identified as Joseph Maslin, who sent the suggestions to Berkshire, included in his first proposal an outline of ideas about ethics violations, which he had copied from a Goldman Sachs proxy statement. In the second proposal, Maslin asked that Buffett and “other top officials and the Board of Directors.. to sign-off [by] means of an electronic key, daily or weekly, that they have observed and approve or disapprove of figures and policies that show a high risk condition for the company, caused by those policies.”

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The proposals were to be included in the 2012 proxy. This came just one month after corporate executive David Sokol resigned with questions surrounding one of his investments in a company that Berkshire later agreed to purchase.

In a 13-page letter by Berkshire’s outside counsel, the law firm of Munger, Tolles & Olsen LLP, it asked the regulatory agency if the two proposals could be excluded from the company’s proxy materials.

The SEC responded that if the company excluded the proposals in question, it would “not recommend enforcement action.”

So what does this mean? It’s actually a common response.

According to MarketWatch, it is common for “no-action” letters this time of year with companies preparing for shareholders questions and answers at their annual meetings. The SEC has on its website more than 100 sets of letters and documents from numerous large corporate giants including the financial firms of Goldman Sachs Group Inc., J.P. Morgan Chase & Co., and Bank of America Corp. as well as other companies such as General Electric Co., Exxon Mobil Corp. and Coca-Cola Co.

The seven-page letter from Berkshire’s law firm listed reasons why it believed Maslin’s first proposal should not be included with the proxy.

It also said that the proposal copied language from a portion of Goldman’s proxy which talked about executive compensation; it was not taken from a proposal for shareholders. In addition, the attorneys’ letter also said that Berkshire “does not have employment agreements or an executive compensation plan remotely similar to Goldman Sachs.”

In regards to the second proposal, the letter said it was “hopelessly confusing and misplaced.”

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