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How Special Government Privileges Enrich Warren Buffet

2:00 PM, Nov 15, 2011 • By MARK HEMINGWAY
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Dealbook has a jaw-dropping report on how the Securities and Exchange Commission (SEC) lets billionaire investors duck transparency:

On Monday, Mr. Buffett disclosed that his company, Berkshire Hathaway, had bought a 5.5 percent stake in International Business Machines, his first big investment in a technology company ever.

But Mr. Buffett didn’t build his $10 billion-plus stake in I.B.M. overnight. He started buying eight months ago, beginning in March. You wouldn’t have known that if you had been studiously reading Berkshire Hathaway’s filings — known as 13Fs — in which companies must disclose stock holdings. There was no mention of I.B.M. in Berkshire’s quarterly filing in April, nor in August. Instead, if you were looking carefully, you might have found an odd footnote that said: “Confidential information has been omitted from the form 13F and filed separately with the commission.”

Translation: Mr. Buffett received special permission from the S.E.C. to keep secret his investment in I.B.M. — and possibly keep secret stakes in other companies that he is building positions in that we have yet to learn about.

According to SEC rules, all investors with over $100 million in investments are supposed to disclose their holdings every quarter. Unless of course, you petition the SEC otherwise. And wouldn't you know it, the SEC seems all too happy to help hide the investment strategies of rich investors:

There are also questions about how well the S.E.C. polices such filings. It appears only one major case recently has been brought against an investment firm — Quattro Global Capital — for not properly disclosing its investment positions.

In 2010, the Office of the Inspector General found problems with the way the S.E.C. broadly treated confidentiality requests by companies and investors. In addition to asking to hide investment stakes, firms ask to exclude financial information from pending contracts and proposals.

“Over 90 percent of confidential treatment requests submitted were not subject to a thorough review and examination for compliance with all aspects of the confidential treatment request rules,” the inspector general found, saying that “there is an increased risk that material information to investors may not be disclosed.”

Christopher J. Hewitt, a partner at the law firm Jones Day, said that in his years of submitting confidential treatment requests, “I’ve never had to substantiate one.”

If there's not enough transparency on Wall Street, perhaps someone should make government enforce the existing rules instead of allowing big investors with the power to wreak havoc on financial markets to act in secrecy.

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