David Sokol and Berkshire Internal Controls

The David Sokol situation has raised any number of issues -- not the least of which is the nature and efficacy of Berkshire internal controls. Interestingly, Sokol discussed them in some detail during his March 31 CNBC interview.

JOE Kernan: There's a lot of, there's other employees as well. This brings up, or begs the question to a lot of people about what Berkshire's internal controls are on employee purchases —

.....

SOKOL: I mean, Warren and (Berkshire CFO) Marc Hamburg furnish us a list of stocks that we are restricted on. Any companies that, you know, that apparently Warren or historically Lou Simpson, or now Todd Combs, or whoever, is invested in, ah, that, you know, we can't ever buy or sell without first contacting Mark. This certainly wasn't one of those companies.....

.......

SOKOL: That's right. In fact, I have no authority whatsoever. I couldn't spend a dollar of Berkshire's money buying, buying a security tomorrow.

It is not publicly known if Berkshire audits the trading activity of its named insiders with respect to companies on the 'list'. But if not, it could be accomplished in a relatively short time. It is reasonable to believe it could be done in a matter of hours -- with the cooperation of insiders, if it hasn't already been done.

Piecing together Berkshire's investment process, it is based on extreme concentration of decision making regarding capital allocation. Buffett (and Munger) make the decisions, with Simpson and Combs running a small portfolio.

Buffett is also famous for what is an unusual decision making style. These are well known and include:

1. Doesn't do auctions or hostile takeovers.

2. Doesn't talk (extensively) without a selling price.

3. Isn't interested in pitches involving publicly traded companies.

4. Extensively uses publicly available financials.

5. Uninterested in the types of work done by most stock analysts.

Of special note is this comment which has been included in his published acquisition criteria for years:

We are not interested, however, in receiving suggestions about purchases we might make in the general stock market.

Considering this as well as the new information that Berkshire uses a control system for public companies based on a list -- the effectiveness of Berkshire's systems in the past are explainable.

If Berkshire insiders refrain from trading in stocks on the list, and given that Buffett/Simpson/Combs are the only decision makers regarding publicly held companies, then the only real possible candidates for "front running" are Berkshire acquisitions of public companies in which Berkshire currently has no position.

Over the last decade, that has included Clayton Homes and Burlington Northern (which would have presumably been on the 'Hamburg' list) which makes for a very short list.

This approach is an interesting variant on the well known separation of duties principle. It is reasonable to assume that Berkshire has established industry standard accounting controls. Their overall thrust is to eliminate the opportunities for insider trading.

Contrast this with a typical asset manager. They have their own analysts, use proprietary data, methods, and processes, and delegate significant parts of the process over a number of employees.

Berkshire's home office has only 20 employees, none of them (except Marc Hamburg) senior executives. I would assume that they are aware of numerous proposals -- so many that it is likely that they would be of little value to typical traders. Among other things, Berkshire is frequently mentioned in the press as a potential savior of a doomed company -- the last hope of imploding companies.

So -- how does this relate to Sokol?

One thought is that Sokol, who has no experience in financial or investment firms outside the totally unique environment of Berkshire, inferred that anything not proscribed by the Hamburg list was fair game. Of course this is speculative, but Sokol's behavior is very difficult for me to explain any other way.

More specifically, he lacks the usual motivation and associated behavior associated with insider trading. He doesn't need the money, and the amounts involved, while significant, are not material to Sokol's personal wealth -- and certainly not sufficient for him to take huge personal risks. More importantly, he made no effort to hide his trading.

His actions are consistent with that of a person that was simply unaware of the significance of his trading. This is not an excuse, but a hypothesis.

The 'Hamburg' process -- a proscribed list of publicly traded securities -- may be a clue to how an intelligent man could behave so recklessly.

Berkshire has a system that explicitly proscribes insiders from trading in specific securities. The also have a principle based standard that no one should do anything that they would be uncomfortable reading about on the front page of the New York Times. Sokol has now had the opportunity to to do exactly that. Whatever else is said, it couldn't have been comfortable.