Shades Of Gray At Berkshire Hathaway

When it comes to conduct that may be unethical or even illegal, there are many shades of gray. So it is with the conduct of David Sokol, who until two weeks ago was Warren Buffet’s most likely successor – if under “shades of gray” we include “black” and “white.”

Sokol either walked up to the legal line or crossed it to turn a quick and handsome investment profit. Ethically, however, Sokol’s actions left no room for doubt, at least in my mind. His admitted behavior would have gotten anyone who works at my firm fired instantly, and every one of our employees knows it.

Sokol, however, did not get fired. Buffett announced Sokol’s resignation on March 30, citing Sokol’s purported desire to manage his own family’s investments rather than eventually take command of Berkshire’s world-class portfolio.

This explanation was transparently implausible. Nobody spends a career on the corporate merry-go-round only to hop off the horse just as it approaches the brass ring. The fact that Buffet – famed as much for his straight-talking, homespun Midwestern persona as for his investment track record – peddled this story reflects poorly on the Sage of Omaha. Then again, the entire Sokol affair points out the difference between investing and managing. Buffet clearly excels at the former; there is much more room for doubt about the latter.

The same press release that disclosed Sokol’s resignation also laid out the details of his investment in the chemical company Lubrizol Corp. Last Dec. 13, a group of bankers from Citigroup met with Sokol, then a senior executive at Berkshire Hathaway (BRK.B), to discuss businesses that Buffet’s company might acquire. Lubrizol was on that list.

Then, in early January, Sokol personally bought $10 million of Lubrizol stock. Shortly after completing the purchase, Sokol presented the idea of acquiring Lubrizol to Buffett. Sokol mentioned, in what Buffett later referred to as a “passing remark,” that he owned some shares, but did not disclose either the size of his Lubrizol purchase or how recently he had made it. Buffett initially rejected the Lubrizol proposal, but later in January, when Sokol approached him again, Buffett changed his mind. On March 14, Berkshire announced its agreement to purchase Lubrizol for $9 billion. Lubrizol stock jumped 28% that day, and Sokol made $3 million on his two-month investment.

Buffett did not learn the full story about Sokol’s personal holdings until March 19, six days after Berkshire’s board approved the deal. Sokol made his allegedly unrelated decision to leave Berkshire Hathaway on March 28. In the press release, Buffett wrote, “Neither Dave nor I feel his Lubrizol purchases were in any way unlawful. He has told me that they were not a factor in his decision to resign.” I am not alone in wondering why Buffet would want to vouch for Sokol’s motives, let alone offer an opinion about the legality of his conduct.

Much of the affair’s coverage focused on whether Sokol breached his fiduciary duty to Berkshire shareholders. There is nothing on the public record thus far to suggest that Sokol recommended Lubrizol to advance his own interest rather than Berkshire’s; he probably did believe, and Buffet came to agree, that the transaction was a likely winner. There also is no evidence to suggest that Sokol’s investment caused Berkshire to pay a higher price for Lubrizol than it otherwise might have.

Buffet, again inexplicably rising to Sokol’s defense, noted in his press release that Sokol “knew he would have no voice in Berkshire’s decision once he suggested the idea [of purchasing Lubrizol]; it would be up to me and Charlie Munger, subject to ratification by the Berkshire Board of which Dave is not a member.”

But the question of whether Sokol harmed Berkshire or its shareholders is certainly irrelevant as a matter of ethics, and almost certainly so as a matter of law. Somebody else got hurt – namely, the parties who sold their stock to Sokol without access to the knowledge that Sokol would soon put Lubrizol on Warren Buffet’s shopping list.

Insider trading is generally defined as trading on “material, nonpublic information.” The fact that Lubrizol was a takeover candidate was not public when Sokol made his trades while in possession of that knowledge. Such information is nearly always “material.” If these are the facts – and we have to be mindful that press reports might not tell the whole story – it would seem to be about as clear-cut a case of insider trading as there is.

Berkshire’s “Code of Business Conduct and Ethics” advises employees “to ask themselves whether they are willing to have any contemplated act appear the next day on the front page of their local paper – to be read by their spouses, children and friends – with the reporting done by an informed and critical reporter.’”

That’s a nice sentiment. But if Sokol’s actions did not violate any company policies, then Berkshire’s policies clearly fall short. At many companies, including Palisades Hudson, Sokol’s actions, legal or not, would have gotten him fired. If anyone here had learned, through one of our clients, that Lubrizol might be considered for a Berkshire acquisition, everyone would have been prohibited by our policies from trading Lubrizol stock – not just because such a trade might look bad in the press, but because using any material non-public information to make trading decisions is forbidden both by law and by our company’s ethical standards.

The immediate result of Sokol’s departure is that he will never run Berkshire Hathaway. But the more important lesson, for Berkshire and its shareholders, is that Buffett can’t run it forever. The company cannot continue to be driven by personality alone, with “rules of thumb” substituting for clear and firm policies about the sorts of conduct that are, and are not, acceptable.

• Become A Funded Futures Trader