Buffett's Filing Lapses Highlight Growing Pains With Compliance

Friday, 22 Aug 2014 07:19 AM

 

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The world’s greatest investor could use some help with record keeping.

In the past two weeks, Warren Buffett’s Berkshire Hathaway Inc. said it missed filing deadlines for investments in Dow Chemical Co. and wallboard maker USG Corp. The latter resulted in an $896,000 penalty.

Buffett, 83, has boasted for years about running Berkshire with a shoestring staff and delegating responsibilities to the heads of operating units like Geico and railroad BNSF. Yet the mistakes raise questions about whether his management approach is suited to an era of increased reporting requirements.

“These are some of the growing pains that come from having a trust-based culture in a world that requires compliance procedures,” Brian Tayan, a researcher at Stanford Graduate School of Business who has studied Berkshire’s governance, wrote in an e-mail. “Shareholders have to make the assessment of whether these filing violations matter to them.”

There have been other slip-ups. Since 2012, Buffett’s company has had to file overdue reports with the U.S. Securities and Exchange Commission about holdings in DirecTV, Liberty Media Corp. and Wabco Holdings Inc. Another document concerning an investment in M&T Bank Corp. came three years behind schedule.

Buffett’s longtime business partner Charles Munger has had his own challenges complying with securities regulations this year. His Daily Journal Corp. missed deadlines for its annual report and two quarterly filings after a dispute with its former auditor, Ernst & Young LLP. The publisher caught up this month. Munger serves as Daily Journal’s chairman and helps oversee its investments.

‘No Process’

Shareholders have been served well by Buffett’s management approach, despite the recent infractions. He built the company into the fifth-largest in the world by market value, amassing a personal fortune of more than $65 billion. As Berkshire grew to employ more than 300,000 workers at dozens of subsidiaries, Buffett kept staff at headquarters in Omaha, Nebraska, to about two dozen people.

Munger, Berkshire’s 90-year-old vice chairman, has highlighted the company’s counterintuitive approach.

“A lot of people think if you just had more process and more compliance — checks and double-checks and so forth — you could create a better result,” he once told investors, according to a paper Tayan published in March with David Larcker. “Well, Berkshire has had practically no process. We had hardly any internal auditing until they forced it upon us. We just try to operate in a seamless web of deserved trust and be careful whom we trust.”

Still, as the company expands, there are more chances to drop the ball. Some of the recent oversights are related to investments initiated by Buffett’s back-up stock pickers, Todd Combs and Ted Weschler, who were hired in 2010 and 2011.

‘An Oversight’

Buffett was responsible for the Dow investment. In 2008, Berkshire agreed to help finance the chemical maker’s purchase of Rohm & Haas, paying $3 billion for preferred shares that can be converted into common stock.

While both companies have disclosed the investment in quarterly and annual filings for years, Berkshire was supposed to make a separate report saying that it could own more than 5 percent of Dow’s common stock. The document wasn’t filed on time “due to an oversight,” Buffett’s company said Aug. 14, in a note explaining the delay.

In December, Buffett exchanged convertible notes in USG for common stock, boosting its stake to about 30 percent. The transaction triggered a requirement to file with the Federal Trade Commission, which is responsible for reviewing whether deals violate antitrust laws.

Four Days

The U.S. said in a complaint this week against Berkshire that it was the second time last year that Buffett’s company failed to file a required report. The earlier infraction was related to an investment in insurer Symetra Financial Corp.

According to the complaint, the FTC told Berkshire on Dec. 5 that it wouldn’t recommend a penalty in that case. Then, Berkshire made the same blunder when it converted the USG holding four days later.

“We made a mistake when we overlooked the filing requirement” for USG, Buffett said in an Aug. 20 statement, when the penalty was announced. He didn’t respond to a request for comment about what the company was doing to avoid future errors.

The FTC has won similar fines in the past. Biglari Holdings Inc. agreed in 2012 to pay $850,000 after failing to report an investment in Cracker Barrel Old Country Store Inc. In 2004, the FTC settled with Bill Gates, the Microsoft Corp. co-founder, for $800,000 over a stake in ICOS Corp., a pharmaceutical company.

Gates, who later joined Berkshire’s board, wasn’t personally involved in the matter, an attorney for his investment company said at the time of the announcement.

Bank Probes

Berkshire’s fine is a fraction of what other large financial companies have paid in recent years to settle probes tied to the housing market collapse, interest-rate rigging and money laundering. Bank of America Corp. agreed yesterday to a settlement of about $16.7 billion to end state and federal investigations into mortgage bond sales.

Still, any slip-ups at Berkshire can be magnified because Buffett has developed an unassailable image, said Lawrence Cunningham, a law professor at George Washington University and author of the forthcoming book “Berkshire Beyond Buffett.”

“You can’t just rely on your reputation,” the professor said. “If you make a mistake, you’ve got to pay.”

© Copyright 2014 Bloomberg News. All rights reserved.

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