More On Legal & Compliancefrom The Advisor's Professional Library
- Client Communication and Miscommunication RIA policies and procedures must specify what type of communications should be retained. The safest course of action is for RIAs to retain all communicationsto clients, from clients, and about client accounts. To comply with fiduciary obligations, communications must be thorough and not mislead.
- Agency and Principal Transactions In passing Section 206(3) of the Investment Advisers Act, Congress recognized that principal and agency transactions can be harmful to clients. Such transactions create the opportunity for RIAs to engage in self-dealing.
In a turnaround for the company founded by Warren Buffett, Berkshire Hathaway may be considering suing David L. Sokol over Lubrizol. Berkshire directors said that the former heir apparent to Buffett misled the company over his ownership stake in Lubrizol, which was set for acquisition by Berkshire.
The New York Times reported that although the company had previously refrained from criticizing Sokol over the deal and the circumstances that came to light after the acquisition was announced on March 14, that changed after a report by the company’s audit committee that was released on Wednesday. Sokol, it said, had learned of Lubrizol through Citigroup bankers, who pitched the company as a possible acquisition target, and Sokol subsequently acquired a substantial block of shares in the company before approaching Buffett about the potential deal.
According to the report, Sokol failed to disclose the full circumstances around Lubrizol and his stake in the company. Instead, his conversations with Buffett were “intended to deceive” and “its effect was to mislead,” which led to the company’s reversal of its position on Sokol himself.
The report says of Sokol, in part, “His misleadingly incomplete disclosures to Berkshire Hathaway senior management concerning those purchases violated the duty of candor he owed the company.” It also says that Sokol may have failed In his fiduciary duty to Berkshire under Delaware law, the state in which Berkshire is incorporated.
Sokol’s attorney, Barry W. Levine of Dickstein Shapiro, disputes a number of statements in the report, and issued a statement saying, “I am profoundly disappointed that the audit committee of Berkshire Hathaway would authorize the issuance of its report to the public without the care and decency to ask even a single question of Mr. Sokol.”
However, Ronald L. Olson of Munger, Tolles & Olson, Buffett’s outside law firm, said that Sokol had been offered, through his attorney, the chance to be interviewed by the audit committee and had refused.
According to the report, the board and the audit committee are considering “possible legal action against Mr. Sokol to recover any damage the company has sustained, or his trading profits.”