The David Sokol story churns my stomach like too many tacos al pastor with a generous side of jalapeños.
Sokol was a superstar CEO of several Berkshire Hathaway subsidiaries who resigned suddenly last week after news of his personal interest in a Berkshire acquisition he teed up was publicized.
I don’t know if it was mainstream media’s quick jump to “insider trading” as the label for his actions that’s bugging me or Sokol’s actual actions. The smug sense of entitlement he displayed when he was interviewed by CNBC the day after the story broke was especially galling.
The insider trading label really didn’t sound right to me. I read the transaction timelines in the New York Times Dealbook and listened to Sokol describe how investment bankers send him “packages” to evaluate all the time. It sounded less to me like inside trading and more like a guy who relished being a “player”.
Granted, the deals he invested in for himself he also, at times, brought to Buffett’s attention. Sometimes Berkshire officially acted on these recommendations. This is what happened with Sokol’s Lubrizol deal.
But what about the ones he didn’t tell them about? And what about the other Berkshire insiders who also used the Berkshire brand and their association with it to take advantage of pitches and opportunities that never made it to their boss’s desks?
According to two law professors – Professor Lymon P.Q. Johnson of Washington & Lee University School of Law and Professor Jonathan R. Macey of Yale Law School – there’s a word for that kind of unethical and actionable behavior:
I wrote this in Forbes yesterday.
What if Sokol’s sin is not “insider trading” but a more fundamental failing that a sage guy like Buffett and sidekick Charlie Munger should be very familiar with?
Breach of fiduciary duty.
David Sokol, as a corporate officer of MidAmerican Energy, Net Jets, and Johns Manville, owes a fiduciary duty to those corporations and to the corporation – Berkshire Hathaway – that owns a significant share (Mid America) or the whole company (Net Jets and Johns Manville). As a corporate officer of Berkshire subsidiaries, Sokol was an agent of Berkshire and was reasonably perceived as such by Berkshire officers Buffett, Charlie Munger, and CFO Hamburg, by external parties such as bankers and acquisition targets, and in his own mind.
Lyman P.Q. Johnson and David Millon in Recalling Why Corporate Officers Are Fiduciaries, The William and Mary Law Review, 2005:
Agency is a consensual relationship that embodies fiduciary obligations arising independently of contract. Even though senior officers of corporations typically have employment agreements, they still occupy a fiduciary status in relation to the corporate principal. As fiduciaries, officers owe several duties to the corporation that exist independently of contract-although they may, to a degree, be altered by agreement. Breach of these duties affords the corporate principal a host of remedies, including a tort action against the agent for losses caused by the breach. In effect, breach of these duties enables the corporation to assert that it is the victim of wrongdoing by the very persons who were to act on its behalf.
The timeline for Sokol’s activities with regard to the controversial Lubrizol transaction is now well known. Most important from a corporate agent perspective is his early representation to Citi investment bankers and Lubrizol that he was acting on behalf of Berkshire Hathaway.
There’s more including excerpts from Professor Johnson’s and Professor Macey’s work on the subject and additional links of interest. The SEC may investigate but, as you might imagine, it’s tough to make a charge stick to Berkshire or Warren Buffet.
On the way to writing this story, I realized some disturbing things about Berkshire Hathaway and how Buffet runs it. So anxious are some to anoint gurus, sages, and oracles, that they overlook some of the worst corporate governance practices I have ever seen. And Buffett doesn’t like to be told how to do its accounting, either.
I’m writing about that next for Forbes.
Remember when many said Madoff was too good to be true?