Category: Corporate Finance

19 Apr, 2018

· by Lawrence Cunningham

Lynn Stout, RIP, Sparred with Charlie Munger

Charlie Munger met his match in Lynn Stout.

Mr. Munger, Warren Buffett’s best friend since 1959, is a notoriously fierce debater who does not suffer fools gladly. At a symposium on The Essays of Warren Buffett I hosted in 1996 at Cardozo Law School, I had him chair the panel on corporate finance. He lit into most members, trenchantly explaining why much of modern finance theory is”gibberish” and “twaddle.” Panelist Professor Robert Hamilton (U. Texas) commented to me he’d never seen anyone so “scary smart” as Munger.

Lynn Stout, who this week passed away at age 60, was on that panel, and she engaged Munger astutely. An independent thinker, Professor Stout mastered all the doctrinal, technical, and theoretical tricks of the trade, from classical economics to boardroom battles, and staked out her own ground on how corporations and markets work and what corporate law should do about it. She was, as Joan Heminway notes in tribute, both persistent and generous.

On the Munger finance panel, Professor Stout presented her paper, How Efficient Markets Undervalue Stocks: CAPM and ECMH Under Conditions of Uncertainty and Disagreement. In the course of discussion, she also touched on takeover premiums. Professor Stout stressed economic theory throughout her analysis and offered to update some prevailing economic models. Munger pressed on psychological aspects of the puzzle of market mispricing.

The Buffett Essays Corporate Finance Panel (1996): Klein, Stout, Cunningham, Munger, Hamilton, Bratton

Intellectual fireworks flew, with bantering between not only Professor Stout and Mr. Munger, but other panelists, including Professors William Bratton (now at Penn) and William Klein (UCLA), and many other conference goers, including Professors Jeff Gordon (Columbia), Dale Oesterle (now at Ohio State) and Edmund Kitch (Virginia), as well as a young man named Bill Ackman.

Highlighted below is a portion of the colloquy, by turns witty and profound, deep but fun. (There’s one somewhat technical exchange between Professors Oesterle and Stout that may seem arcane but non-experts can skim it and get the gist of the intellectual joust.) Read it for Lynn.

MUNGER: Lynn, what is your personal opinion of those people who would expect inefficiencies–mispricing–to occur because of certain standard cognitive defects of humankind?

STOUT: They’re right.

MUNGER: I certainly agree with that and that means you have to listen to psychologists if you want to predict standard patterns of irrationality, doesn’t it? Read More

Corporate Finance / Culture

8 Apr, 2018

· by Lawrence Cunningham

Cunningham “Buffett Shareholder” Omaha Events 2018

Following are the public events during this year’s Berkshire Hathaway Annual Meeting surrounding the launch of our new book, The Warren Buffett Shareholder. Hope to see some of you there, and regrets that our New York book launch event is already sold out.

Thursday	Friday — Daytime	Friday — Evening	Saturday	Sunday
U. Nebraska Mammel Hall Berkshire System Summit 11:40 to 12 (talk 11 to 11:40)	CenturyLink Center Shareholder Shopping Day Bookworm 11 to 6	Embassy Suites Yellow BRKers 4 to 7 (greetings at around 5)	CenturyLink Center BRK Annual Meeting Bookworm 7 to 4 pm	Hilton Hotel Markel Brunch 8:30 to 10:30 a.m.
U. Nebraska Mammel Hall Value Investor Conference 3 to 4 & 6 to 6:30	Creighton University Value Investing Panel 2 to 3 & 5 to 6 (panel 3 to 5)	Hilton Hotel Tilson/Kase Reception 8 to 12 midnight	Hilton Hotel Tilson/Kase Reception 4 to 6	ALSO: Visit the Bookworm in town and the Hudson bookstore in the airport for special displays and offerings around the book.

Articles and Books / Book Reviews / Corporate Finance / Corporate Governance / Corporate Law / Culture / Current Events / Education / Management / Warren Buffett

8 Apr, 2018

· by Lawrence Cunningham

New Book: Jack Bogle Appreciates Warren Buffett’s Surprise Shout Out

From this morning’s Omaha World Herald. Editor’s note: In a new book, “The Warren Buffett Shareholder,” Buffett-watchers Lawrence Cunningham and Stephanie Cuba have compiled essays by 43 people about Berkshire Hathaway’s shareholder meetings, which now draw more than 40,000 people to Omaha each year. We will excerpt some of those essays each Sunday in print before this year’s May 5 annual meeting. Today’s comes from Vanguard Group founder Jack Bogle.

Late in December 2016, I received a note from my good friend Steve Galbraith asking me to put a “save-the-date” marker on my calendar for the weekend of May 6, 2017. He and his wife, Lucy, had a plan, undisclosed, to celebrate my 88th birthday on May 8.

At a dinner in Omaha with Warren and his new team of money managers (as Steve later told me), he had mentioned our friendship. Steve offered to bring me to the upcoming annual meeting of Berkshire Hathaway shareholders. Warren thought that was a great idea, and so the plot was hatched.

So when the morning of May 5, 2017, arrived, Eve and I, with daughter Barbara and son-in-law Scott Renninger in tow, drove to Atlantic Aviation, Philadelphia’s terminal for private planes.

No sooner had we arrived than a Citation jet with Steve and Lucy aboard swooped down and scooped up our quartet. We were on our way! (Son Andrew and his friend Kathryn would meet us in Omaha on Saturday morning.)

After a short hop (that jet is fast!), we landed in Omaha. As Vanguard’s founder, I’d attained a modest celebrity status in the world of investing, but that hardly prepared me for the reception I received when we entered the Omaha Hilton.

At least 10 guests, armed with camera-ready iPhones, immediately snapped away at the new arrival.

Later, when our sextet dined at the hotel, scores of celebrity hunters continued to take photos, asking politely and working smartly. (I quickly learned that saying “yes” was infinitely more efficient then saying “no” and then arguing about it.)

When I awakened on Saturday morning and looked out of my hotel room window, I could hardly believe what I saw. A line, maybe four people wide, stretched from the CenturyLink Center, site of the annual meeting, to as far as I could see.

All told, 40,000 people would attend the 2017 annual meeting, almost half of whom were in the arena, with the rest of the throng watching on video from a remote site. Our now octet was ushered to premier seating in the arena, right behind the space reserved for Berkshire Hathaway longtime shareholders, and next to the company’s directors.

Warren and Charlie Munger were seated on the stage immediately before us.

As Warren gave his opening remarks — a summary of Berkshire’s 2016 results — I couldn’t help wondering why Steve had brought us to Omaha. My question was soon answered, as these excerpts from the meeting transcript reflect:

Buffett:

“Jack Bogle has done probably more for the American investor than any man in the country. Jack, could you stand up? There he is.

“Jack Bogle many years ago, he wasn’t the only one talking about an index fund, but it wouldn’t have happened without him. …

“I estimate that Jack, at a minimum, has saved, left in the pockets of investors without hurting them overall in terms of performance, gross performance, he’s put tens, and tens, and tens, of billions into their pockets.

“And those numbers are going to be hundreds and hundreds of billions over time. It’s Jack’s 88th birthday on Monday. So I just say, Happy Birthday, Jack. And thank you on behalf of American investors.”

Despite my surprise and delight, I was able to stand up and wave to Warren, Charlie and the cheering crowd. I confess to being deeply and emotionally touched by Warren Buffett’s generous words — a “red-letter” day in my now 67-year career.

After Warren’s shoutout, the number of photo seekers soared, to the point where I found it useful to leave each session 5 or 10 minutes before the intermission.

Even then, I began to understand why rock stars among our entertainers are so eager to avoid the paparazzi who follow their every move.

But I confess that, on this one grand occasion, I found huge satisfaction in being recognized for my contribution to the world of investing, and to the wealth of the human beings who have entrusted their assets to Vanguard’s index funds. (I’m only human!) …

This was hardly the first indication that Warren and I operated on investment principles that, while a long way from identical, have a certain commonality. …

Accolades are nice, and endorsements are, too, but human connections are what life is largely about. I celebrate the friendship and mutual admiration that I’ve shared with Warren Buffett and Steve Galbraith, men of integrity, wisdom and class.

Excerpted exclusively for The World-Herald from “The Warren Buffett Shareholder: Stories From Inside the Berkshire Hathaway Annual Meeting,” edited by Lawrence Cunningham and Stephanie Cuba. (Cunningham Cuba LLC & Harriman House Ltd., 242 pages, $25)

Conferences / Corporate Finance / Corporate Governance / Corporate Law / Warren Buffett

21 Feb, 2017

· by Deven Desai

Some History on Trade and Tariffs

I tend to think that when someone says “This is how it should be” or “As it was, so it shall be” there’s a good chance that the claims are incorrect. Marc Levinson’s book, An Extraordinary Time, hits an area, where I have had that gut feeling that something isn’t correct, quite well. Can the US and the world reach the levels of growth that happened after WWII and ended around 1973? Short answer not likely. The book goes into the various technocrat approaches to fixing the economy, and then the book shows that none of those really hold up. A quote from Paul Samuelson sums up “The third quarter of the Twentieth Century was a golden age of economic progress. It surpassed any reasoned expectation. And we are not likely to see its equivalent anytime soon again.”

One specific area, the use of tariffs to protect American jobs, jumped out for me. After resisting pressure for tariffs on bolts, nuts, and screws (yes a major area it seems), in 1978 the Carter Administration caved and imposed a 15% tariff that lasted three years. US manufacturers raised their prices so that tariff protection cost was passed to consumers. One study estimated that limiting imports from Asia (the target of the tariff) cost $550,000 per job “saved” while the average job in that industry made $23,000 per year. And the tariff did not save the industry. By the mid 1980s sales of the US industry in that sector had lost about 15%.

When it came to autos, trade limits with Japan saved 44,100 US jobs. That is great. But one study says that the cost to consumers was $8.5 billion, because of higher prices “or $193,000 per additional job–approximately six times the annual pay of an American autoworker.” And Japanese automakers still sold their cars at the higher prices and so made “perhaps $7 billion in added profit” which was re-invested in building plants in the US and developing higher-end cars. That is they seem to have become more competitive.

I note these details, not because I am an avid free-trade person. I note them not because I think those who are displaced by the way society and industry change should be shoved aside or chewed up. I note them, because it seems to me that some of the core points about trade policy hold up, if we want lower consumer prices. Remember that part of being able to buy lower cost and super cool TVs, cars, etc. means our dollars are able to buy other things too. There are oceans of ink on the way trade and costs ought to spur overall good things. I leave that for others and other posts.

For this post, the core issue is what happens when large swaths of society, be they in the vast plains or the former industrial giants or in cities and suburbs, aren’t able to have jobs and so their place in society is unstable? Levinson’s book goes to the many times the US and other countries have tried to solve such riddles. The answers are not clear. But the book’s ability to show how looking to politicians and policy to save us has not worked as crisply as we may hope or believe is good tonic going forward. That is regardless of who is in power, look at the solution, look at whether it has been tried, see what happened, and ask whether there is a better way to address the problem; one that might give aid to those threatened and still tee up better businesses for the future.

Corporate Finance / Economic Analysis of Law / Empirical Analysis of Law / Employment Law / Trade

8 Jul, 2016

· by Lawrence Cunningham

Berkshire’s Blemishes: Lessons for Buffett’s Successors, Peers, and Policy

Columbia University has published my most recent research paper, available free on SSRN (registration required): “Berkshire’s Blemishes: Lessons for Buffett’s Successors, Peers, and Policy.” Here is the abstract.

* * * * * * * * * *

Berkshire Hathaway’s unique managerial model is lauded for its great value; this article highlights its costs. Most costs stem from the same features that yield such great value, which boil down, ironically, to Berkshire trying to be something it isn’t: it is a massive industrial conglomerate run as an old-fashioned investment partnership. An advisory board gives unchecked power to a single manager (Warren Buffett); Buffett makes huge capital allocations and pivotal executive hiring-and-firing decisions with modest investigation and scant oversight; Berkshire’s autonomous and decentralized structure grants operating managers enormous discretion with limited second-guessing; its trust-based culture relies on a cultivated vision of integrity more than internal controls; and its thrifty anti-bureaucracy means no central departments, such as public relations or general counsel.

Delineating the visible costs of Berkshire’s model confirms the desirability of tolerating many of them, given the value concurrently generated, but also reveals ways to improve the model—a few while Buffett is at the helm but mostly for successors. Current reform suggestions include hiring a full-time public relations professional at headquarters and more systematically developing senior executives; suggestions for future reform include enhanced subsidiary compliance resources and separating the identity and personal opinions of top executives from the corporation and its official policy.

Besides helping Berkshire, the review and suggestions will help managers of other companies inspired by Buffett’s unique managerial model and policymakers who should study it. Implications for peers and policymakers include highlighting flexibility in corporate governance, the efficacy of the conglomerate form, and especially the value of strategies that produce long-term thinking among shareholders and managers alike.

Corporate Finance / Corporate Governance / Corporate Law / Warren Buffett

14 Jun, 2016

· by Lawrence Cunningham

Buffett’s Timeless Investing Principles

Warren Buffett distills investment success into three words—margin of safety—and tells investors to take one of two approaches: either focus on value or buy an index fund. Buffett, the “Oracle of Omaha,” has been steadfastly giving such sage advice for decades, through calm and choppy markets alike.

In fact, twenty years ago I hosted Warren and Charlie Munger, his Berkshire Hathaway partner, for a two-day conference at Cardozo Law School that launched an international best seller, The Essays of Warren Buffett: Lessons for Corporate America. At the time, Warren’s investing style was unfashionable. Critics increasingly said he’d lost touch, misunderstanding the budding “new economy” and its “game-changing” technology. Buffett foresaw exceedingly high stock prices—and soon proved correct.

After recently stumbling on the transcript from that gathering, I published an annotated version, The Buffett Essays Symposium: Annotated 20^th Anniversary Transcript. It’s packed with timeless gems for every investor—then and now, in ups or downs—including these three pivotal propositions. Read More

Corporate Finance / Investing

24 May, 2016

· by Lawrence Cunningham

Dale Oesterle on Buffett & Munger 20 Years Later

Editor’s Note: Dale Oesterle (Ohio State U.) contributes an extended version of his current reflections on The Buffett Essays Symposium: A 20th Anniversary Annotated Transcript, recently published by The Cunningham Group and Harriman House. Prof. Oesterle (right) participated in the 1996 symposium’s panel on takeovers and engaged in extensive colloquy with Berkshire Hathaway Vice Chairman, Charlie Munger, sitting in the front row (left).

Much has changed since my exchange with Mr. Munger in 1996. Relevant to my comment, leveraged acquisition practice, and our view of the social utility of leveraged acquisitions has changed significantly.

First, true hostile tender offers, tender offers that close hostile, are dead. By hostile, I refer to tender offers that are made and executed (closed) without the consent of the target board of directors. An offer closes hostile when the hostile bidder, buys enough stock to replace vote out a resisting target board. Financial buyers were “raiders” funded by “LBO Funds” [Leveraged Buy-Out Funds].

We have a very infrequent current substitute in which hostile tender offers are made contingent on the success of a hostile proxy contest. But the word hostile now attaches to tender offers that are, in essence, harsh opening bargaining positions to pressure sitting boards of the target to negotiate to a friendly conclusion. These bids too are rare, however.

What now survives of the old 80s hostile acquisition is a rather timid substitute. Hedge funds buy small stock stakes so as to not trigger takeover defenses and, as “activist shareholders,” attempt to persuade a sitting board to engage in major transactions or financial reorganizations.

In most cases, the incumbent board and the new active block shareholder negotiate to some sort of compromise. Incumbent boards that refuse any and all changes face a challenge for one or two board seats and “shark attacks”, a growing group of shareholders, other hedge funds and even institutional investors, that is increasing disturbed by the board’s position. The common public attack, fueled by the same group of lawyers, politicians, and pundits that attacked raiders, now focuses on hedge funds and “activist shareholders.”

True leveraged acquisition became friendly, run by “PE [Private Equity] Funds,” and often focused on distressed companies negotiating purchases short of inevitable or impeding bankruptcy. PE Funds also attracted the scorn of the public for their often radical re-organization efforts; workers were fired, factories closed or sold, and headquarters moved. Read More

Corporate Finance / Mergers and Acquisitions / Securities / Securities Regulation

25 Jan, 2016

· by Lawrence Cunningham

Warren Buffett’s Timeless Ten Investing Rules

cunningham buffett 4e cover About 10 years ago, editors of Investing Rules asked me the top ten rules from Warren Buffett on investing. Last week, the editors asked me to update the list for a new edition. After studying the list for the first time in a decade, guess how much change was needed?

None. Given the timeless quality of Buffett’s method, I did not elect to change a word. Herewith the list, as good today as ten, twenty or more years ago. And for elaboration of these and other insights, see The Essays of Warren Buffett, recently updated to a fourth edition.

Don’t be the patsy.

If you cannot invest intelligently, the best way to own common stocks is through an index fund that charges minimal fees. Those doing so will beat the net results (after fees and expenses) enjoyed by the great majority of investment professionals. As they say in poker, ‘If you’ve been in the game 30 minutes and you don’t know who the patsy is, you’re the patsy’.

Operate as a business analyst.

Do not pay attention to market action, macroeconomic action, or even securities action. Concentrate on evaluating businesses.

Look for a big moat.

Look for businesses with favorable long term prospects, whose earnings are virtually certain to be materially higher 5, 10, 20 years from now.

Exploit Mr. Market.

Market prices gyrate around business value, much as a moody manic depressive swings from euphoria to gloom when things are neither that good nor that bad. The market gives you a price, which is what you pay, while the business gives you value and that is what you own. Take advantage of these market mis-pricings, but don’t let them take advantage of you.

Insist on a margin of safety.

The difference between the price you pay and the value you get is the margin of safety. The thicker, the better. Berkshire’s purchases of the Washington Post Company in 1973-74 offered a very thick margin of safety (price about 1/5 of value).

Buy at a reasonable price.

Bargain hunting can lead to purchases that don’t give long-lasting value; buying at frenzied prices will lead to purchases that give very little value at all. It is better to buy a great business at fair price than a fair business at great price.

Know your limits.

Avoid investment targets that are outside your circle of competence. You don’t have to be an expert on every company or even many – only those within your circle of competence. The size of the circle is not very important; knowing its boundaries, however, is vital.

Invest with ‘sons-in-law’.

Invest only with people you like, trust and admire – people you’d be happy to have your daughter marry.

Only a few will meet these standards.

When you see one, buy a meaningful amount of its stock. Don’t worry so much about whether you end up diversified or not. If you get the one big thing, that is better than a dozen mediocre things.

Avoid gin rummy behavior.

This is the opposite of possibly the most foolish of all Wall Street maxims: ‘You can’t go broke taking a profit’. Imagine as a stockholder that you own the business and hold it the way you would if you owned and ran the whole thing. If you aren’t willing to own a stock for 10 years, don’t even think about owning it for 10 minutes.

Corporate Finance / Investing

16 Jun, 2015

· by Lawrence Cunningham

Five Reasons to Cheer for Starr v. United States (AIG Nationalization Case)

Yesterday, the US Federal Court of Claims ruled that the US government and its leaders acted illegally in nationalizing AIG during the 2008 financial crisis, in a shareholder suit led by Hank Greenberg, the man who built AIG until his departure in 2005. But the judge (Wheeler) also ruled against awarding any damages, saying AIG shareholders were not harmed.

A top journalist at a major financial magazine asked me the following five questions, and I gave the answers indicated–being five reasons you should celebrate the ruling. Please note that I wrote the book, The AIG Story (Wiley 2013), with Greenberg, where we laid out the legal basis for Wheeler’s ruling on illegality.

1) Is this a moral victory for Hank Greenberg? Do you think he sees it that way?
Yes, it is a moral victory for Greenberg and for everyone else who cares about the rule of law. I can’t speak for Hank other than to say he cares deeply about the rule of law.

2) Andrew Ross Sorkin calls this a split decision in today’s New York Times. Is that true and if not who won?
It is a Solomonic split decision but designed to invite an appeal by Greenberg and not by the government, so Hank gets a second bite at the apple on appeal.

3) Given the collateral calls that were pending and the certainty of an AIG bankruptcy, did Greenberg ever have a real chance to recover $40 billion?
No, but given the possibility of hiving off the insurance companies outside of bankruptcy, Judge Wheeler’s conclusion on no damages is vulnerable to reversal on appeal.

4) What will this ruling mean for government intervention in future financial crises? Is that good or bad?
No more violating the law or the rule of law by government officials, whatever they may think at the time. Very good–a win for justice and true American legal values.

5) The judge says that government broke the law in taking over AIG. Do you agree with that assessment?
Yes. Virtually every major figure in the takeover violated the law, certainly fiscal authorities such as Bernanke and Geithner, and maybe cabinet secretaries such as Paulson, and many of their bankers and lawyers, including those from Davis Polk, Goldman Sachs and Sullivan & Cromwell. They should all feel disgraced.

Constitutional Law / Corporate Finance / Corporate Governance / Corporate Law / Corruption

27 May, 2015

· by Lawrence Cunningham

A Berkshire Opportunity Cost: Listed Family Firms

The following is adapted from “Berkshire’s Blemishes,” a working paper delineating the costs, rather than the vaunted benefits, of Warren Buffett’s Berkshire Hathaway as a management model.

Warren Buffett loves family businesses whose owner-managers care more about their constituents than about profits, recognizing instead that customer care tends to translate into economic gain. Those entrepreneurs, in turn, love Berkshire Hathaway, Buffett’s company, because it offers intangible benefits such as managerial autonomy and a permanent home. When family businesses sell to Berkshire, they know they can still run them as they see fit and will not be sold if prospects falter: Berkshire has not sold a subsidiary in forty years and promises not to.

Buffett hates using Berkshire stock to pay for acquisitions, however, since few companies can match the time-tested premium currency Berkshire has come to represent. In fact, Berkshire’s worst acquisition was paid for in stock and Buffett still translates the cost into current values: $443 million paid in 1993, equivalent to more than $5 billion in Berkshire stock now. Preferring to pay cash, Berkshire is often able to acquire family businesses at a discount because selling shareholders value Berkshire culture. Buffett also hates auctions, plagued by frightful dangers like the winner’s curse, which can push bids well above value, rationally calculated.

Sensible as these tenets are, there is always an opportunity cost, in this case forsaking listed family firms–publicly traded companies controlled by a family. Unlike those owned solely by close-knit groups who all wish to sell to Berkshire, directors of listed family businesses owe duties to non-family shareholders when selling control. In most states, led by Delaware, they are duty-bound to get the best value for shareholders. (The doctrine is known by famous cases illustrating it, including Revlon and Paramount v. QVC.)

In a stock deal where all holders share gains in future business value, directors could consider Berkshire’s special culture in valuing the transaction. But with cash, all such future value goes to Berkshire’s shareholders, not selling public stockholders, who would also gain nothing from the autonomy or permanence that family members prize in a sale to Berkshire. So directors resist an all cash sale at a discount and seek rival suitors at higher prices, even stimulating an auction to drive price up—repelling Berkshire’s interest.

An example can be drawn from Berkshire’s 2003 acquisition of Clayton Homes, a publicly traded family business bought for a modest (seven percent) premium to market. Many Clayton shareholders objected; one, Cerberus Capital Management, told Clayton it wanted the chance to make a competing bid; another sued. The result was a six-month delay in getting to a shareholder vote, which narrowly approved the Berkshire deal. Many Clayton shareholders were disappointed, but Cerberus opted not to outbid Berkshire, and the court dismissed the lawsuit.

The scenario remains unattractive to Berkshire, however, given the risk of litigation, delay and rival bids. After all, courts might require directors to take affirmative steps, presenting the risk of an auction, which in itself suffices to deter Berkshire from bidding in the first place. The upshot: the publicly traded family business is outside Berkshire’s acquisition model, amounting to an opportunity cost for what would otherwise be a sweet spot. On balance, it is probably a price worth paying, but it’s useful to know the price.

Lawrence A. Cunningham, a professor at George Washington University, has written numerous books on a wide range of subjects relating to business and law.

Behavioral Law and Economics / Corporate Finance / Corporate Governance / Corporate Law / General Law