December 21, 2024

DealBook: Sears Chairman Buys Shares, but His Reason Is Unclear

Edward Lampert, seen in 2004, controls just under 60 percent of the shares of Sears Holdings.Vincent Laforet/The New York TimesEdward Lampert, seen in 2004, controls just under 60 percent of the shares of Sears Holdings.

When big-name investors increase their personal stakes in stocks, the purchases can be a positive sign for the companies.

Edward S. Lampert sent a murkier message this week after buying extra shares in Sears Holdings, the troubled retailer.

Mr. Lampert, who controls just under 60 percent of the retailer’s shares through his hedge funds and his own portfolio, recently added another $130 million of Sears stock to his personal holdings. But he did not acquire it in the open market from outside investors. Rather, he bought the shares from his hedge fund, ESL Investments, according to a regulatory filing on Wednesday.

It could be a sign his hedge fund investors are dissatisfied.

As of November, Sears made up 30 percent of the holdings of RBS Partners, a $9 billion investment vehicle related to ESL Investments. That holding has been a drag on performance. Over the last 12 months, shares of Sears are down about 55 percent, with the stock being pummeled late last year after disappointing holiday sales.

Mr. Lampert may be under pressure to meet redemptions from his hedge funds. Other regulatory filings suggest that investors have been pulling out in recent weeks.

At the end of 2011, Mr. Lampert’s hedge fund entities returned roughly $1 billion to investors. These distributions — which, unusually, took the form of AutoZone shares, not cash — were done as part of fund restructurings and a wind-down of a portfolio.

It is also not clear how much Mr. Lampert has increased his personal stake in Sears with the $130 million purchase. As a manager of his hedge funds, he already had indirect and sizable economic exposure to Sears. Mr. Lampert, who serves as Sears chairman, also took $17 million worth of the company’s shares from a hedge fund entity in place of cash management fees.

A spokesman for Mr. Lampert declined to comment on investor redemptions.

Since 2008, Mr. Lampert has been feeling heat for his Sears investment. Over the last three years, the company has consistently reported disappointing sales, in part because it has not spent enough money updating its stores, critics say.

The poor sales may now be leading to a cash squeeze. Sears forecasts that cash flows for the quarter that will end this month will be less than half what they were in the year-earlier period.

With the retailer’s financial situation deteriorating, one lender, the CIT Group, has stopped making cash advances to Sears’s suppliers. This could intensify Sears’s woes.

When these advances dry up, suppliers often demand immediate payment for the goods they sell to the retailer. Or they may ask the retailer for a letter of credit, under which a bank guarantees payments.

If suppliers make such demands, they can deplete the retailer’s cash and drain bank credit lines. Both contributed to the 2008 demise of the electronics retailer Circuit City.

In a statement, Sears said it had ample access to cash through bank lines. It also said it disagreed with CIT’s action and noted that the lender’s advances represented “less than 5 percent” of Sears’s inventories. Bloomberg News earlier reported on CIT’s decision.

But the pullback by CIT could make a big dent in Sears’s cash if the retailer cannot find other lenders.

Sears had $10.2 billion in inventory at the end of October. Should Sears have to find cash and letters of credit to pay suppliers for 5 percent of that amount, it could need $510 million.

Fitch Ratings said Thursday that 5 percent of its 2012 Sears inventory forecast would equal $400 million to $450 million. In any case, Fitch said in a report, CIT’s move reduced the retailer’s margin of safety.

Article source: http://feeds.nytimes.com/click.phdo?i=9fe43e795d9f362995b65ecf23642be6

DealBook: Berkshire Gets Tough With Sokol as Meeting Nears

David L. SokolMario Anzuoni/ReutersDavid L. Sokol is now facing a hard line from Berkshire Hathaway.

After Warren E. Buffett disclosed last month that David L. Sokol was resigning from Berkshire Hathaway amid the revelation that he had bought a $10 million personal stake in Lubrizol while promoting a takeover of the company, Berkshire was quiet for weeks. Now, on the eve of Berkshire’s annual shareholders meeting, the company has come out fighting.

The company’s directors on Wednesday issued a scathing report that accused Mr. Sokol, once a star manager and potential candidate to replace Mr. Buffett atop the Berkshire empire, of violating the company’s ethics and insider trading policies.

When Mr. Sokol’s lawyer publicly protested that the directors had failed to question Mr. Sokol for the report, a Berkshire lawyer and director quickly retorted that Mr. Sokol had declined to make himself available.

The sharp rebuke — and the company’s aggressive attempts to distance itself from Mr. Sokol — could temper some of the harsh scrutiny bearing down on Berkshire as Saturday’s annual meeting approaches, analysts said on Thursday.

“I think this was aimed at pre-empting a lot of the harder questions at the meeting,” said Greggory Warren, a senior stock analyst with Morningstar. Mr. Warren, who is going to the annual meeting in Omaha, said he eliminated “six or seven questions” he had planned to ask Mr. Buffett “because of the report.”

Still, Berkshire has yet to quell completely the controversy surrounding Mr. Sokol, public relations experts say.

“What’s so surprising to me is how little strategy there has been,” said Paul A. Argenti, professor of corporate communication at the Tuck School of Business at Dartmouth.

Mr. Buffett, he noted, is fond of saying: “Lose money for my firm, and I will be understanding. Lose a shred of reputation for the firm, and I will be ruthless.” But he has yet to publicly take Mr. Sokol to task.

“Why isn’t Warren Buffett being ruthless?” Mr. Argenti asked. “The report was a good thing to get out there, but the real question is how he handles it this weekend. This is his moment.”

In a brief interview on Fox Business Network on Thursday night, Mr. Buffett said he would not duck any questions about Mr. Sokol at the meeting. “We can answer any question that gets asked,” he said. “You will not hear ‘no comment.’ If our lawyer gets up and wrestles me to the ground I will still talk.”

Corporate governance experts said Berkshire was taking a step in the right direction.

“I thought they laid out the details in a very transparent and clear way,” said David F. Larcker, an accounting professor and director of the Corporate Governance Research Program at Stanford’s graduate business school. “They were tough, and I think that’s a good thing.”

Still, others added that the new approach was unlikely to lead to changes in the company’s hands-off management style.

“How intrusive are you going to be into your employees’ personal lives? If you don’t trust the guy, you should fire him,” said Jonathan R. Macey, a professor of corporate law and corporate governance at Yale University.

And the report does not necessarily spell an end to Berkshire’s problems. For a company that has carefully cultivated a pristine image — a rarity in modern corporate America — one black mark could threaten to tarnish years of good will.

The report also does not excuse Mr. Buffett from addressing lingering questions about his handling of the Mr. Sokol affair — and the future of the company.

Until now, Berkshire had been careful not to criticize Mr. Sokol, the former star chairman of NetJets and MidAmerican Energy. When Mr. Buffett announced Mr. Sokol’s resignation on March 30, he said, “Neither Dave nor I feel his Lubrizol purchases were in any way unlawful.” He also praised Mr. Sokol’s tenure at the company, saying his ”contributions have been extraordinary.”

The report appeared intended to distance Berkshire from Mr. Sokol as regulators and shareholders are scrutinizing Mr. Sokol’s trading, said Bradley Simon, a former federal prosecutor and now a defense lawyer.

“The complete about-face seems a little suspect to me,” he said. “Their position seems somewhat self-serving and self-protective.”

Mr. Sokol, 54, resigned from Berkshire after it emerged that he had bought about 100,000 Lubrizol shares shortly before bringing the company to Mr. Buffett’s attention in January. Berkshire later agreed to buy Lubrizol for $9 billion, causing Lubrizol’s shares to surge and increasing the value of Mr. Sokol’s holding by about $3 million.

The Securities and Exchange Commission is investigating Mr. Sokol’s trading, people close to the inquiry have said. Mr. Sokol and Mr. Buffett, meanwhile, face a lawsuit from a Berkshire shareholder who wants Mr. Sokol to forfeit his trading profits in Lubrizol because of the damage done to Berkshire’s reputation.

Berkshire could be vulnerable to other claims that Mr. Sokol’s share purchases drove up the purchase price of Lubrizol, lawyers said. “The report was intended to stymie any lawsuits and give plaintiff lawyers pause,” Mr. Simon said.

Berkshire does have another remedy at its disposal: suing Mr. Sokol. Berkshire’s board is considering whether to pursue “possible legal action against Mr. Sokol to recover any damage the company has sustained, or his trading profits,” the report said.

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DealBook: New Details Emerge on Sokol and Lubrizol Deal

David L. SokolDaniel Acker/Bloomberg News David L. Sokol resigned from Berkshire Hathaway on March 30.

9:18 p.m. | Updated

David L. Sokol, a former top deputy to Warren E. Buffett, knew more about Lubrizol’s interest in a potential deal with Berkshire Hathaway than previously disclosed — a revelation that comes as the government examines Mr. Sokol’s personal stake in the chemical manufacturer.

A regulatory filing on Monday shows that Mr. Sokol was aware in mid-December that Lubrizol’s chief executive planned to talk to his board about a possible acquisition by Berkshire. A few weeks later, Mr. Sokol bought nearly 100,000 Lubizol shares.

The fresh details once again cast a spotlight on Mr. Sokol’s decision to take a $10 million stake in Lubrizol while orchestrating a potential takeover of it.

The Securities and Exchange Commission is considering whether to open a formal investigation into Mr. Sokol, according to people close to the agency. His legal liability, in part, hinges on whether he acted on material, confidential information for his own personal gain.

Mr. Sokol, who abruptly resigned his managerial post at Berkshire last month, saw the value of his Lubrizol stake rise by $3 million after Berkshire announced its $9 billion bid for the industrial company.

“I think someone could look at this set of facts and say there’s a potential problem here,” said Richard L. Scheff, a former federal prosecutor who is now a criminal defense lawyer at Montgomery, McCracken, Walker Rhoads. “This raises a concern for me.”

Even so, the insider trading rules are murky. And the government may find it difficult to prove Mr. Sokol’s trades were anything more than “innocent purchases,” said Daniel J. Hurson, a former lawyer in the S.E.C.’s enforcement office who is now in private practice.

Mr. Sokol has said that he did nothing wrong, and Mr. Buffett has agreed.

“Neither Dave nor I feel his Lubrizol purchases were in any way unlawful,” Mr. Buffett said in a letter last month about the resignation, noting that Mr. Sokol made the trades before pitching the Lubrizol deal to Berkshire.

The preliminary proxy filed by Lubrizol on Monday provides greater detail about Mr. Sokol’s dealings.

Mr. Sokol first expressed interest in a Lubrizol acquisition in December, after Citigroup bankers recommended the industrial manufacturer as a possible takeover target.

On Dec. 17, a Citigroup banker called Lubrizol’s chief executive, James L. Hambrick, to let him know about Berkshire’s possible interest in the company, the new regulatory filing said. Mr. Hambrick told the banker that he would share Berkshire’s possible interest with the Lubrizol directors.

That same day, Citigroup told Mr. Sokol, then chairman of MidAmerican Energy and NetJets, about the board’s planned discussions — a previously unknown part of the timeline.

“That sounds pretty material to me,” Mr. Hurson said. “If I was still at the S.E.C., I’d be interested in the case.”

Mr. Sokol started accumulating Lubrizol stock shortly thereafter. From Jan. 5 through Jan. 7, Mr. Sokol bought more than 96,000 shares of the company.

The Lubrizol board held a “special meeting” on Jan. 6 to discuss Berkshire Hathaway’s possible interest in the company, and the board agreed right away to hire lawyers to advise on a potential acquisition.

“On or about January 10, 2011, Mr. Hambrick requested that Citi contact Mr. Sokol to inform him that he should expect a call from Mr. Hambrick and thereafter Citi so informed Mr. Sokol,” according to the latest Lubrizol filing.

Roughly four days later, Mr. Sokol and Mr. Hambrick talked on the phone about the “corporate cultures and philosophies” at their respective companies. They agreed to meet in person later in the month.

Mr. Sokol suggested a Lubrizol deal to Mr. Buffett on Jan. 14 or 15, according to Mr. Buffett’s letter. At the time, Mr. Sokol made a “passing remark” about his stake in Lubrizol to Mr. Buffett, who did not ask about “the date of his purchase or the extent of his holdings.”

Some analysts and corporate governance experts have criticized Mr. Buffett for not demanding further details.

“This is damaging to Berkshire’s reputation,” said Greggory Warren, a senior stock analyst at research firm Morningstar. “It brings up questions about Berkshire’s internal controls.”

Mr. Buffett indicated in his letter that “Dave’s purchases were made before he had discussed Lubrizol with me and with no knowledge of how I might react to his idea” or “what Lubrizol’s reaction would be if I developed an interest.”

Although Mr. Buffett was originally skeptical of the deal, he later became convinced. Berkshire ultimately agreed on March 14 to acquire Lubrizol for $9 billion.

On March 30, Mr. Buffett announced the departure of Mr. Sokol in a letter that detailed the trades.

That’s when Lubrizol “first learned” of Mr. Sokol’s personal stake, the company said in the filing on Monday.

Article source: http://feeds.nytimes.com/click.phdo?i=d41e17c9caaabe0156e3296449892324