DealBook: Buffett’s Annual Letter Plays Up Newspapers’ Value

Over the last half-century, Warren E. Buffett has built a reputation as a contrarian investor, betting against the crowd to amass a fortune estimated at $54 billion.

Mr. Buffett underscored that contrarian instinct in his annual letter to shareholders published on Friday. In a year when Mr. Buffett did not make any large acquisitions, he bought dozens of newspapers, a business others have shunned. His company, Berkshire Hathaway, has bought 28 dailies in the last 15 months.

“There is no substitute for a local newspaper that is doing its job,” he wrote.

Those purchases, which cost Mr. Buffett a total of $344 million, are relatively minor deals for Berkshire, and just a small part of the giant conglomerate. Mr. Buffett bemoaned his inability to do a major deal in 2012. “I pursued a couple of elephants, but came up empty-handed,” he said. “Our luck, however, changed earlier this year.”

Mr. Buffett was making a reference to one of his largest-ever deals. Last month, Berkshire, along with a Brazilian investment group, announced a $23.6 billion takeover,of the ketchup maker H. J. Heinz.

Written in accessible prose largely free of financial jargon, Berkshire’s annual letter holds appeal far beyond Wall Street. This year’s dispatch contained plenty of Mr. Buffett’s folksy observations about investing and business that his devotees relish.

“More than 50 years ago, Charlie told me that it was far better to buy a wonderful business at a fair price than to buy a fair business at a wonderful price,” Mr. Buffett wrote, referring to his longtime partner at Berkshire, Charlie Munger.

Mr. Buffett also struck a patriotic tone, directly appealing to his fellow chief executives “that opportunities abound in America.” He noted that the United States gross domestic product, on an inflation-adjusted basis, had more than quadrupled over the last six decades.

“Throughout that period, every tomorrow has been uncertain,” he wrote. “America’s destiny, however, has always been clear: ever-increasing abundance.”

The letter provides more than entertainment value and patriotic stirrings, delivering to Berkshire shareholders an update on the company’s vast collection of businesses. With a market capitalization of $250 billion, Berkshire ranks among the largest companies in the United States.

Its holdings vary, with big companies like the railroad operator Burlington Northern Santa Fe and the electric utility MidAmerican Energy, and smaller ones like the running-shoe outfit Brooks Sports and the chocolatier See’s Candies. All told, Berkshire employs about 288,000 people.

The letter, once again, did not answer a question that has vexed Berkshire shareholders and Buffett-ologists: Who will succeed Mr. Buffett, who is 82, as chief executive?

Last year, he acknowledged that he had chosen a successor, but he did not name the candidate.

He has said that upon his death, Berkshire will split his job in three, naming a chief executive, a nonexecutive chairman and several investment managers of its publicly traded holdings.

In 2010, he said that his son, Howard Buffett, would succeed him as nonexecutive chairman.

Berkshire’s share price recently traded at a record high, surpassing its prefinancial crisis peak reached in 2007 and rising about 22 percent over the last year.

The company reported net income last year of about $14.8 billion, up about 45 percent from 2011. Yet the company’s book value, or net worth — Mr. Buffett’s preferred performance measure — lagged the broader stock market, increasing 14.4 percent, compared with the market’s 16 percent return.

Mr. Buffett lamented that 2012 was only the ninth time in 48 years that Berkshire’s book value increase was less than the gain of the Standard & Poor’s 500-stock index. But he pointed out that in eight of those nine years, the S.& P. had a gain of 15 percent or more, suggesting that Berkshire proved to be a most valuable investment during bad market periods.

“We do better when the wind is in our face,” he wrote.

For Berkshire’s largest collection of assets, its insurance operations, the wind has been at its back. We “shot the lights out last year” in insurance, Mr. Buffett said.

He lavished praise on the auto insurer Geico, giving a special shout-out to the company’s mascot, the Gecko lizard.

Investors also keep a keen eye on changes in Berkshire’s roughly $87 billion stock portfolio. Its holdings include large positions in iconic companies like International Business Machines, Coca-Cola, American Express and Wells Fargo. He said Berkshire’s investment in each of those was likely to increase in the future.

“Mae West had it right: ‘Too much of a good thing can be wonderful,’ ” Mr. Buffett wrote.

He also complimented two relatively new hires, Todd Combs and Ted Weschler, who now each manage about $5 billion in stock portfolios for Berkshire. Both men ran unheralded, modest-size money management firms before Mr. Buffett plucked them out of obscurity and moved them to Omaha to work for him.

He called the men “a perfect cultural fit” and indicated that the two would manage Berkshire’s entire stock portfolio once he steps aside. “We hit the jackpot with these two,” Mr. Buffett said, noting that last year, each outperformed the S.& P. by double-digit margins.

Then, sheepishly, employing supertiny type, he wrote: “They left me in the dust as well.”

A former paperboy and member of the Newspaper Association of America’s carrier hall of fame, Mr. Buffett devoted nearly three out of 24 pages of his annual report to newspapers.

While Mr. Buffett has been a longtime owner of The Buffalo News and a stakeholder in The Washington Post Company, he told shareholders four years ago that he wouldn’t buy a newspaper at any price.

But his latest note reflects how much his opinion has turned. His buying spree started in November 2011, when he struck a deal to buy The Omaha World-Herald Company, this hometown paper, for a reported $200 million. By May 2012, he bought out the chain of newspapers owned by Media General, except for The Tampa Tribune. In recent months, he continued to express his interest in buying more papers “at appropriate prices — and that means a very low multiple of current earnings.”

“Papers delivering comprehensive and reliable information to tightly bound communities and having a sensible Internet strategy will remain viable for a long time,” wrote Mr. Buffett.

Mr. Buffett said in a telephone interview last month that he would consider buying The Morning Call of Allentown, Pa., a paper that the Tribune Company is considering selling. But Mr. Buffett said he had not contacted Tribune executives.

“It’s solely a question of the specifics of it and the price,” he said about the Allentown paper. “But it’s similar to the kinds of communities that we bought papers in.”

Mr. Buffett has plenty of cash to make more newspaper acquisitions. To cover his portion of the Heinz purchase, Mr. Buffett will deploy about $12 billion of Berkshire’s $42 billion cash hoard. That leaves a lot of money for Mr. Buffett to continue his shopping spree for newspapers — and more major deals like Heinz.

“Charlie and I have again donned our safari outfits,” Mr. Buffett wrote, “and resumed our search for elephants.”

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Detroit Car Sales Climb Again

General Motors reported a 7 percent gain in auto sales in the United States in February, beating several analyst estimates on the strength of its crossover models and pickup trucks, while Detroit rival Ford Motor Co. posted a slightly weaker-than-expected 9.0 percent gain.

G.M. sold 224,314 cars and trucks last month. Sales of its Chevrolet Silverado pickup trucks jumped nearly 30 percent, while its Chevrolet Equinox midsize crossover rose 16 percent.

G.M., the largest Detroit automaker, also predicted that the overall auto industry’s sales rate this month would be 15.5 million, better than the 15.1 million sales rate expected by economists polled by Thomson Reuters.

Ford said its American auto sales rose to 195,822 cars and trucks in February. The No. 2 automaker reported a 21 percent gain in sales of its crossover and sport-utility vehicles while its F-Series trucks saw a 15.3 percent gain.

But Ford’s car sales rose 6.4 percent, hurt by a 11 percent drop in the Focus compact car and a 9 percent drop in the Fiesta subcompact. Trucks overall, including the E-Series and heavy trucks, rose 3.6 percent during the month.

Chrysler Group, the third-largest Detroit automaker, said its United States sales rose 4 percent to 139,015 in February, slightly less than some analysts expected. Volkswagen’s American unit posted a 2.9 percent increase to 31,456 vehicle sales.

Auto sales each month are an early indicator of the consumer spending. Industry sales in February were expected to show a fourth straight month of seasonally adjusted annualized sales above 15 million vehicles, for the first time since early 2008, a sign of a sustained recovery after the recession.

Chrysler estimated the month will finish at 15.5 million, including medium and heavy trucks, which typically add 300,000 vehicles to the monthly sales rate.

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DealBook: For S.E.C., a Setback in Bid for More Time in Fraud Cases

The Supreme Court on Wednesday delivered a swift and decisive rejection of the Securities and Exchange Commission’s argument that it should operate under a more forgiving statute of limitations in pursuing penalties in fraud cases.

As a result of the decision, the agency will have to find a long-term solution to give itself more time to investigate cases.

In Gabelli v. Securities and Exchange Commission, Chief Justice John G. Roberts Jr. wrote in the unanimous decision rejecting the S.E.C.’s argument that a federal statute that limits the government’s authority to pursue civil penalties should commence when a fraud is discovered, not when it occurred.

The S.E.C. was hoping that the court would apply what is known as the “discovery rule.” In 2010, the Supreme Court endorsed this rule in a private securities fraud class-action suit, Merck & Co. v. Reynolds, stating “that something different was needed in the case of fraud, where a defendant’s deceptive conduct may prevent a plaintiff from even knowing that he or she has been defrauded.”

The discovery rule is an exception to the protection afforded by a statute of limitations, which puts an endpoint on potential legal liability for conduct. Unlike most cases, when fraud is involved, it may not be apparent to the victims that they were harmed because the primary goal of deceptive conduct is to keep it from being exposed.

In the Gabelli case, the S.E.C. filed fraud charges in 2008 against the mutual fund manager Marc Gabelli and a colleague, Bruce Alpert, saying they had violated the Investment Advisers Act of 1940 for permitting an investor to engage in market timing. Ten years ago, a major scandal erupted when it came to light that some advisers had permitted select investors to buy shares at favorable prices to take advantage of pricing disparities in the securities held by mutual funds.

In its complaint, the S.E.C. sought civil monetary penalties based on market timing that it claimed had taken place from 1999 to 2002, and resulted in the preferred investor purportedly reaping significant profits while ordinary investors suffered large losses. The defendants denied the charges and filed a motion to dismiss the case because it was not brought in time.

A federal statute, 28 U.S.C. § 2462, provides that “an action, suit or proceeding for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or otherwise, shall not be entertained unless commenced within five years from the date when the claim first accrued.” The provision dates to 1839, and applies to any government agency.

A decision by the United States Court of Appeals for the Second Circuit in Manhattan allowed the case to proceed by applying the discovery rule to a governmental action. Coincidentally, that decision was written by Judge Jed S. Rakoff, who despite being an occasional thorn in the S.E.C.’s side, accepted the agency’s argument to avoid a strict application of the five-year statute of limitations.

The Supreme Court, however, saw things differently. This week, it issued its opinion less than two months after it heard oral argument in the case in January, a clear sign the justices found no merit in the S.E.C.’s contention that the agency should be treated the same as private plaintiffs in trying to get around the statute of limitations.

According to the Supreme Court, victims in securities fraud cases should have a longer period to file a claim – from when the fraud was discovered. “Most of us do not live in a state of constant investigation,” the court wrote. “Absent any reason to think we have been injured, we do not typically spend our days looking for evidence that we were lied to or defrauded.”

Chief Justice Roberts explained that “the S.E.C. as enforcer is a far cry from the defrauded victim the discovery rule evolved to protect.” One of the reasons the agency exists is to detect and penalize violations, with tools that the ordinary investor simply does not have, like the authority to compel testimony and the production of documents. The message is simple. When it’s your job to investigate fraud, you cannot argue that your failure to do so is a justification for not meeting a statute of limitations.

The Supreme Court’s decision puts increased pressure on the S.E.C. to pursue its investigations with greater alacrity and not let them gather dust, which can occur as a result of staff turnover or other pressing issues. The market timing case is a good example of how an investigation might get lost in the shuffle as corporate accounting frauds at large companies like Enron and WorldCom, which also came to light in 2002, strained the S.E.C.’s investigative resources.

There are a couple of options to deal with this issue in the long run, apart from a substantial increase in the agency’s budget – an unlikely prospect in the face of the looming federal budget sequestration deadline.

The S.E.C. can obtain an agreement to stop the statute of limitations, known as tolling, from those it is investigating, something it has done in the past. For example, in its insider trading and securities fraud case against Samuel E. Wyly, his now deceased brother, Charles J. Wyly Jr., and two other defendants, the S.E.C. got an agreement that let it pursue claims beyond the normal five-year limitations period.

A permanent solution would be to seek legislation from Congress that would give the S.E.C. a longer window to complete its investigations. The statute of limitations is not a constitutional protection, so Congress can amend it as it sees fit, which it has done in other areas involving fraud.

The limitations period for banking crimes, for example, was extended to 10 years during the savings and loan crisis because of the crush of cases that made it difficult to finish investigations in the five-year window to initiate criminal prosecutions. The Fraud Enforcement and Recovery Act of 2009 added mail and wire fraud affecting a financial institution to the list of crimes that get the benefit of the 10-year limitations period, again because of fear that cases would be lost because of the number of investigations taking place after the financial crisis.

The issue of the statute of limitations may even come up at the confirmation hearings of Mary Jo White, who has been nominated to be chairwoman of the S.E.C. That could be an early indicator of whether she would be willing to push for relief from the effect of the Gabelli opinion to help out the enforcement division.

In the short run, the Supreme Court’s decision will cause defendants in government enforcement actions to examine whether they might be able to take advantage of the five-year limitations period. Given how slowly the government has been known to move on occasion, it may be that some cases will fall by the wayside because of the Gabelli decision.

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DealBook: Obama’s Nominee for S.E.C. Tries to Allay Skepticism

Mary Jo White’s path to the Securities and Exchange Commission has reached a crucial juncture: the Congressional charm campaign.

Lawmakers are scrutinizing Ms. White ahead of her Senate confirmation hearing, raising questions about the former prosecutor’s lack of regulatory experience and the challenge of policing Wall Street firms she recently defended in private practice. But Ms. White is seeking to quell concerns about potential conflicts of interest.

She recently scheduled meetings with Senate Banking Committee members, who must clear her nomination, and answered a 20-page boilerplate questionnaire detailing her qualifications, according to a copy provided to The New York Times. The document sheds new light on her list of Wall Street clients, including little-known work performed for HSBC’s former chief executive. It also describes her ties to New York Democratic causes and laurels she earned both as a defense lawyer and federal prosecutor.

The questionnaire, created by the banking committee, focused significant attention on her movement through the revolving door between government service and private practice, a concern that has loomed since President Obama nominated Ms. White in January.

“As a government official, I believe I have an established track record and the reputation of being tough, but fair,” she said in the document.

Ms. White also offered a previously undisclosed concession, vowing “as far as can be foreseen,” never to return to Debevoise & Plimpton, where she had built a lucrative legal practice. To avert potential conflicts stemming from her work on behalf of Wall Street giants, Ms. White had already agreed to recuse herself for one year from most matters that involve former clients.

While Ms. White’s nomination is expected to sail through the committee before receiving full Senate approval, four Congressional officials who spoke anonymously warned that some Democrats have lingering reservations.

The Democrats note that her husband, John W. White, is co-chairman of the corporate governance practice at Cravath, Swaine & Moore, where he represents many of the companies that the S.E.C. regulates. They also question whether Ms. White’s recusals, even if well-intentioned, could cripple her ability to run the agency.

In a meeting on Tuesday with Senator Sherrod Brown, Democrat of Ohio, Ms. White did little to alleviate the fears.

“Senator Brown respects Ms. White’s credentials and experience, but is concerned with Washington’s long-held bias toward Wall Street,” his spokeswoman, Meghan Dubyak, said in a statement. “He pushed Ms. White,” to explain “whether her previous employment or her spouse’s current employment could cause her to recuse herself from key business facing the S.E.C.” The agency has already fallen behind in writing dozens of new rules for Wall Street.

Ms. White’s supporters counter that, before the White House announced the appointment, the Office of Government Ethics vetted her disclosures. The nonpartisan officials concluded that, even with her recusals, Ms. White could effectively run the agency.

Her supporters also trumpet her long tenure as a tenacious prosecutor. During stints as a federal prosecutor in Brooklyn and as the first woman United States attorney in Manhattan, she helped oversee the prosecution of the crime figure John Gotti and directed the case against those responsible for the 1993 World Trade Center bombing. The cases won her praise from several lawmakers.

Ms. White still has time to win over remaining skeptics. Her confirmation hearing is not expected until the week of March 11, Congressional officials briefed on the matter said.

Until then, Ms. White is blitzing through the halls of Congress, a routine practice for nominees. She began her charm offensive at the top of the banking committee’s roster, visiting this month with the Democratic chairman, Senator Tim Johnson, of South Dakota. A Congressional official briefed on the matter said Ms. White performed well at the gathering, and no major issues arose.

In the next round of meetings, she will face off with a more liberal arm of the committee known to scrutinize nominees. After meeting Mr. Brown, Ms. White is scheduled to see Senator Jeff Merkley, Democrat of Oregon. She also will meet Elizabeth Warren, the Massachusetts Democrat who is an outspoken critic of Wall Street, Ms. Warren’s office confirmed on Tuesday.

Even if Ms. White fails to satisfy lawmakers’ concerns, the meetings are an important step in clearing the way for her appointment.

“Senators will have a chance to size Mary Jo up, and I believe will come away with a great sense of comfort that she’s a candidate of true quality,” said Harvey Pitt, who passed through the confirmation process in 2001 to lead the S.E.C.

He noted that additional disclosures could bolster her candidacy. “I do think she will need to provide a level of comfort to the committee that she is aware of the issue, has a definitive plan for navigating through the potential conflict issues, and will be completely open about when she has a potential recusal issue, and how she has handled it,” he said.

Ms. White, a political independent, assured lawmakers in her questionnaire that she was “completely independent of political or personal influences.” She did disclose, however, $13,000 in campaign donations to Democratic candidates. She also served on the campaign committee of a Democrat who had run for New York attorney general.

Her ties to Debevoise — and its clients — are more significant; she represented JPMorgan Chase, UBS and Michael Geoghegan, the former head of HSBC.

Ms. White, 65, said this month said that she would retire from Debevoise after taking over the S.E.C. and would forgo the firm’s typical retirement perks: office space and a free BlackBerry. She also will sever financial ties to the firm during her term at the S.E.C., taking an upfront lump-sum retirement payment rather than collecting a monthly installment of $42,500.

Her husband has also offered concessions. He agreed to convert his partnership at Cravath, Swaine & Moore from equity to nonequity status and promised not to “communicate directly” with the S.E.C. about rule-making. Ms. White will not participate in a matter with a direct effect on his compensation.

In line with a standard move for federal appointees, Ms. White further agreed to recuse herself for one year from voting on enforcement cases involving Debevoise clients. There are limitations to the policy, though, in case it is “in the public interest” and a “reasonable” person would not object.

Some lawmakers dismiss questions about her potential conflicts, but still question her mastery of regulatory minutiae. While Ms. White is a skilled litigator, she lacks experience in financial rule-writing, unlike a predecessor, Mary Schapiro, a lifelong regulator who ran the S.E.C. for nearly four years.

In her questionnaire, Ms. White highlighted her role as a director of the Nasdaq exchange and other experiences that she said gave her “a firm grounding” in securities laws.

She also, inadvertently, drew a connection to Ms. Schapiro. Like Ms. Schapiro, Ms. White is an animal lover, currently serving as a board member of the American Society for the Prevention of Cruelty to Animals.

She agreed to step down from the board once she is sworn in at the S.E.C.

A version of this article appeared in print on 02/27/2013, on page B1 of the NewYork edition with the headline: Nominee For S.E.C. Tries to Allay Skepticism.

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Wall Street Sheds Morning Gains

After beginning the day with a partial rebound from Monday’s steep drop, stocks on Wall Street gave up their gains Tuesday in the course of Congressional testimony by Ben S. Bernanke, the Federal Reserve chairman.

In late morning trading, the Standard & Poor’s 500-stock index was essentially flat, while the Dow Jones industrial average was up 0.4 percent. The Nasdaq composite index was down 0.1 percent.

In his prepared testimony before the Senate Banking Committee, Mr. Bernanke defended the Fed’s bond-buying program and said the economy was growing at a “moderate if somewhat uneven pace.” Senators were questioning him on the prospects for a global currency war and the potential economic effects of the latest budget impasse in Congress.

The major indexes fell more than 1 percent on Monday, with the S.&P. 500 recording its biggest daily drop since November. The falloff came as investors fretted that if Italy does not undertake reforms, the euro zone could once again be destabilized. The Euro Stoxx 50 index was off more than 3 percent in late trading Tuesday.

Groups in Italy opposed to economic reforms posted a strong showing in the recent election, resulting in a political deadlock with a comedian’s protest party leading the poll and no group securing a clear majority in Parliament.

“We’ve gone to an environment of political stability to instability, and until we get some type of clarity over who is in charge, which could take days, the market will have renewed concerns,” said Art Hogan, managing director of Lazard Capital Markets in New York.

Still, market participants speculated that a coalition government would eventually emerge in Italy and ease worries about a new euro zone crisis.

The early market gains suggested the recent trend of investors buying on dips would continue. Last week, concerns that the Federal Reserve might roll back its stimulus efforts earlier than expected prompted a sharp two-day decline, though equities recovered most of the lost ground by the end of the week.

“Investors are taking advantage of the drop, and once some kind of coalition government is formed, most of our concerns will be put to rest,” Mr. Hogan said.

Home Depot reported adjusted earnings and sales that beat expectations, sending shares up more than 5 percent.

Macy’s rose 2.6 percent after stating it expected full-year earnings to be above analysts’ forecasts because of strong sales in the holiday period.

For the benchmark S.&P. 500, 1,500 points will be watched as a key benchmark after the index closed below it on Monday for the first time since Feb. 4, with selling accelerating after falling below it. An inability to break back above it could portend further losses.

Financial shares may be among the most volatile, as that sector is closely tied to the pace of global economic growth. Morgan Stanley was one of the top percentage losers on the S.&P. on Monday, dropping more than 6 percent on concerns about the company’s exposure to European debt. It initially rose 0.8 percent on Tuesday, but was down 0.5 percent by late morning.

This article has been revised to reflect the following correction:

Correction: February 26, 2013

Because of an editing error, an earlier version of this article misidentified the Senate panel before which Ben S. Bernanke, the Federal Reserve chairman, was testifying Tuesday. It was the Banking Committee, not the Finance Committee.

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BP Trial Opens, With Possible Deal in Background

NEW ORLEANS — The long-awaited civil trial against BP and its contractors stemming from the 2010 explosion of a drilling rig in the Gulf of Mexico that left 11 dead and soiled hundreds of beaches began on Monday, even as settlement talks appeared to intensify between the oil company and federal and state goverments.

Jim Roy, the lead lawyer of private plaintiffs, started the trial with a scathing attack on BP for ignoring multiple signs of problems on the rig and in routine maintenance of safety tests and equipment that led to the Macondo well accident.

“BP made a series of decisions to save time and money that substantially increased risk,” Mr. Roy told a packed courtroom. He said the decisions were typical of “a culture of profit and production over safety.”

In more than an hour of testimony, Mr. Roy noted that BP had decided to employ single-walled drill pipe, which provided inferior barriers to leaks, and it decided that it was not necessary to circulate drilling mud, a method designed to strengthen cement, before installing a seal on the well. He reminded the court that BP opted against conducting a cement bond test, an acoustics test that could have identified the gas that had leached into the piping during the well cementing process.

And finally, he said, using information that has previously been described in numerous government and private reports since the accident, BP ignored the results of a failed pressure test shortly before the well was sealed and blew out.

But Mr. Roy also argued that Transocean, the owner and operator of the Deepwater Horizon rig, had failed to adequately train its employees in emergency operations, and Halliburton was deficient in testing and mixing the cement to seal the well.

The first phase of the trial, which was expected to last three months under Judge Carl J. Barbier of Federal District Court in New Orleans, will determine whether BP or its contractors were “grossly negligent” in causing the accident.

Many of Mr. Roy’s arguments will be repeated in later opening statements by the Justice Department and gulf state attorneys general. BP and its contractors will contest much of the testimony, and they are expected to lay various degrees of blame on each other. The private plaintiffs in the trial, including thousands of businesses and individuals, are suing for damages from all the companies.

At the same time, details of a settlement offer by federal and state officials to the oil company began to emerge over the weekend. The plan, worth a total of $16 billion, would limit the fines paid by BP under the Clean Water Act to $6 billion, a proposal that could help reduce its tax liability, one person briefed on the plan said Sunday, speaking on the condition of anonymity.

BP would also pay $9 billion in penalties to cover damages to natural resources as well as the cost of restoration, that person said. The remaining $1 billion would be set aside in a fund that could be tapped if unanticipated environmental damages related to the spill developed.

No one at BP, the Justice Department or the states involved has commented on any settlement proposal, but several lawyers briefed on the negotiations said that a $16 billion proposal had been made. The affected states are Alabama, Florida, Louisiana, Mississippi and Texas, although only Alabama and Louisiana are participating in the trial.

Even if settlement talks slow or stall, the proposal represents a big breakthrough for several reasons, lawyers briefed on the talks said. For one, it represents the first time that Louisiana, which was hardest hit by the spill and would receive the largest payout of any state from a settlement, has participated in an offer.

In addition, the proposal signals the first agreement among states and the federal government on two other crucial issues: a rough plan for how the states would divide any settlement money, and how the settlement would balance fines and penalties against BP.

BP pleaded guilty last year to 14 criminal charges, including manslaughter; admitted negligence in misreading important tests before the blowout; and agreed to pay $4.5 billion in fines and other penalties. The Justice Department has also filed criminal charges against four BP employees.

Last February, a trial to resolve claims against BP by individuals and businesses affected by the spill was delayed by Judge Barbier on the eve of trial because of settlement talks. BP subsequently agreed to create a fund now valued at $8.5 billion to settle those claims. However, numerous individuals and businesses chose not to participate and are also parties to the trial that started Monday.

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Major Banks Aid in Payday Loans Banned by States

Major banks have quickly become behind-the-scenes allies of Internet-based payday lenders that offer short-term loans with interest rates sometimes exceeding 500 percent.

With 15 states banning payday loans, a growing number of the lenders have set up online operations in more hospitable states or far-flung locales like Belize, Malta and the West Indies to more easily evade statewide caps on interest rates.

While the banks, which include giants like JPMorgan Chase, Bank of America and Wells Fargo, do not make the loans, they are a critical link for the lenders, enabling the lenders to withdraw payments automatically from borrowers’ bank accounts, even in states where the loans are banned entirely. In some cases, the banks allow lenders to tap checking accounts even after the customers have begged them to stop the withdrawals.

“Without the assistance of the banks in processing and sending electronic funds, these lenders simply couldn’t operate,” said Josh Zinner, co-director of the Neighborhood Economic Development Advocacy Project, which works with community groups in New York.

The banking industry says it is simply serving customers who have authorized the lenders to withdraw money from their accounts. “The industry is not in a position to monitor customer accounts to see where their payments are going,” said Virginia O’Neill, senior counsel with the American Bankers Association.

But state and federal officials are taking aim at the banks’ role at a time when authorities are increasing their efforts to clamp down on payday lending and its practice of providing quick money to borrowers who need cash.

The Federal Deposit Insurance Corporation and the Consumer Financial Protection Bureau are examining banks’ roles in the online loans, according to several people with direct knowledge of the matter. Benjamin M. Lawsky, who heads New York State’s Department of Financial Services, is investigating how banks enable the online lenders to skirt New York law and make loans to residents of the state, where interest rates are capped at 25 percent.

For the banks, it can be a lucrative partnership. At first blush, processing automatic withdrawals hardly seems like a source of profit. But many customers are already on shaky financial footing. The withdrawals often set off a cascade of fees from problems like overdrafts. Roughly 27 percent of payday loan borrowers say that the loans caused them to overdraw their accounts, according to a report released this month by the Pew Charitable Trusts. That fee income is coveted, given that financial regulations limiting fees on debit and credit cards have cost banks billions of dollars.

Some state and federal authorities say the banks’ role in enabling the lenders has frustrated government efforts to shield people from predatory loans — an issue that gained urgency after reckless mortgage lending helped precipitate the 2008 financial crisis.

Lawmakers, led by Senator Jeff Merkley, Democrat of Oregon, introduced a bill in July aimed at reining in the lenders, in part, by forcing them to abide by the laws of the state where the borrower lives, rather than where the lender is. The legislation, pending in Congress, would also allow borrowers to cancel automatic withdrawals more easily. “Technology has taken a lot of these scams online, and it’s time to crack down,” Mr. Merkley said in a statement when the bill was introduced.

While the loans are simple to obtain — some online lenders promise approval in minutes with no credit check — they are tough to get rid of. Customers who want to repay their loan in full typically must contact the online lender at least three days before the next withdrawal. Otherwise, the lender automatically renews the loans at least monthly and withdraws only the interest owed. Under federal law, customers are allowed to stop authorized withdrawals from their account. Still, some borrowers say their banks do not heed requests to stop the loans.

Ivy Brodsky, 37, thought she had figured out a way to stop six payday lenders from taking money from her account when she visited her Chase branch in Brighton Beach in Brooklyn in March to close it. But Chase kept the account open and between April and May, the six Internet lenders tried to withdraw money from Ms. Brodsky’s account 55 times, according to bank records reviewed by The New York Times. Chase charged her $1,523 in fees — a combination of 44 insufficient fund fees, extended overdraft fees and service fees.

For Subrina Baptiste, 33, an educational assistant in Brooklyn, the overdraft fees levied by Chase cannibalized her child support income. She said she applied for a $400 loan from Loanshoponline.com and a $700 loan from Advancemetoday.com in 2011. The loans, with annual interest rates of 730 percent and 584 percent respectively, skirt New York law.

Ms. Baptiste said she asked Chase to revoke the automatic withdrawals in October 2011, but was told that she had to ask the lenders instead. In one month, her bank records show, the lenders tried to take money from her account at least six times. Chase charged her $812 in fees and deducted over $600 from her child-support payments to cover them.

“I don’t understand why my own bank just wouldn’t listen to me,” Ms. Baptiste said, adding that Chase ultimately closed her account last January, three months after she asked.

A spokeswoman for Bank of America said the bank always honored requests to stop automatic withdrawals. Wells Fargo declined to comment. Kristin Lemkau, a spokeswoman for Chase, said: “We are working with the customers to resolve these cases.” Online lenders say they work to abide by state laws.

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Many States Say Cuts Would Burden Fragile Recovery

States are increasingly alarmed that they could become collateral damage in Washington’s latest fiscal battle, fearing that the impasse could saddle them with across-the-board spending cuts that threaten to slow their fragile recoveries or thrust them back into recession.

Some states, like Maryland and Virginia, are vulnerable because their economies are heavily dependent on federal workers, federal contracts and military spending, which will face steep reductions if Congress allows the automatic cuts, known as sequestration, to begin next Friday. Others, including Illinois and South Dakota, are at risk because of their reliance on the types of federal grants that are scheduled to be cut. And many states simply fear that a heavy dose of federal austerity could weaken their economies, costing them jobs and much-needed tax revenue.

So as state officials begin to draw up their budgets for next year, some say that the biggest risk they see is not the weak housing market or the troubled European economy but the federal government. While the threat of big federal cuts to states has become something of a semiannual occurrence in recent years, state officials said in interviews that they fear that this time the federal government might not be crying wolf — and their hopes are dimming that a deal will be struck in Washington in time to avert the cuts.

The impact would be widespread as the cuts ripple across the nation over the next year.

Texas expects to see its education aid slashed hundreds of millions of dollars, which could force local school districts to fire teachers, if the cuts are not averted. Michigan officials say they are in no position to replace the lost federal dollars with state dollars, but worry about cuts to federal programs like the one that helps people heat their homes. Maryland is bracing not only for a blow to its economy, which depends on federal workers and contractors and the many private businesses that support them, but also for cuts in federal aid for schools, Head Start programs, a nutrition program for pregnant women, mothers and children, and job training programs, among others.

Gov. Bob McDonnell of Virginia, a Republican, warned in a letter to President Obama on Monday that the automatic spending cuts would have a “potentially devastating impact” and could force Virginia and other states into a recession, noting that the planned cuts to military spending would be especially damaging to areas like Hampton Roads that have a big Navy presence. And he noted that the whole idea of the proposed cuts was that they were supposed to be so unpalatable that they would force officials in Washington to come up with a compromise.

“As we all know, the defense, and other, cuts in the sequester were designed to be a hammer, not a real policy,” Mr. McDonnell wrote. “Unfortunately, inaction by you and Congress now leaves states and localities to adjust to the looming threat of this haphazard idea.”

The looming cuts come just as many states feel they are turning the corner after the prolonged slump caused by the recession. Gov. Martin O’Malley of Maryland, a Democrat, said he was moving to increase the state’s cash reserves and rainy day funds as a hedge against federal cuts.

“I’d rather be spending those dollars on things that improve our business climate, that accelerate our recovery, that get more people back to work, or on needed infrastructure — transportation, roads, bridges and the like,” he said, adding that Maryland has eliminated 5,600 positions in recent years and that its government was smaller, on a per capita basis, than it had been in four decades. “But I can’t do that. I can’t responsibly do that as long as I have this hara-kiri Congress threatening to drive a long knife through our recovery.”

Federal spending on salaries, wages and procurement makes up close to 20 percent of the economies of Maryland and Virginia, according to an analysis by the Pew Center on the States.

But states are in a delicate position. While they fear the impact of the automatic cuts, they also fear that any deal to avert them might be even worse for their bottom lines. That is because many of the planned cuts would go to military spending and not just domestic programs, and some of the most important federal programs for states, including Medicaid and federal highway funds, would be exempt from the cuts.

States will see a reduction of $5.8 billion this year in the federal grant programs subject to the automatic cuts, according to an analysis by Federal Funds Information for States, a group created by the National Governors Association and the National Conference of State Legislatures that tracks the impact of federal actions on states. California, New York and Texas stand to lose the most money from the automatic cuts, and Puerto Rico, which is already facing serious fiscal distress, is threatened with the loss of more than $126 million in federal grant money, the analysis found.

Even with the automatic cuts, the analysis found, states are still expected to get more federal aid over all this year than they did last year, because of growth in some of the biggest programs that are exempt from the cuts, including Medicaid.

But the cuts still pose a real risk to states, officials said. State budget officials from around the country held a conference call last week to discuss the threatened cuts. “In almost every case the folks at the state level, the budget offices, are pretty much telling the agencies and departments that they’re not going to backfill — they’re not going to make up for the budget cuts,” said Scott D. Pattison, the executive director of the National Association of State Budget Officers, which arranged the call. “They don’t have enough state funds to make up for federal cuts.”

The cuts would not hit all states equally, the Pew Center on the States found. While the federal grants subject to the cuts make up more than 10 percent of South Dakota’s revenue, it found, they make up less than 5 percent of Delaware’s revenue.

Many state officials find themselves frustrated year after year by the uncertainty of what they can expect from Washington, which provides states with roughly a third of their revenues. There were threats of cuts when Congress balked at raising the debt limit in 2011, when a so-called super-committee tried and failed to reach a budget deal, and late last year when the nation faced the “fiscal cliff.”

John E. Nixon, the director of Michigan’s budget office, said that all the uncertainty made the state’s planning more difficult. “If it’s going to happen,” he said, “at some point we need to rip off the Band-Aid.”

Fernanda Santos contributed reporting.

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Room for Debate: Should Companies Tell Us When They Get Hacked?

A National Priority and a Business Priority

Lauren Gelman, BlurryEdge Strategies

Like pollution, an insecure infrastructure is bad for everyone. Disclosing security breaches reintroduces the public's collective interest.

Disclosure Plays Into Hackers’ Hands

Alexander Tabb, partner, research and consulting firm

By requiring companies to disclose security breaches, we would be requiring them to telegraph their weaknesses to the world.

Investors Need to Know

Jacob Olcott, Good Harbor Security Risk Management

It’s not that the events aren’t happening. It’s that you're not being told about them -- despite the S.E.C.'s instructions.

We Need Better Notification Laws

Lee Tien, Electronic Frontier Foundation

Existing laws focus mainly on whether a breach exposed information, not why it happened. Yet the reason can be critical.

More Disclosure Is Not Always Better

Baruch Fischhoff, decision sciences, Carnegie Mellon

People may exaggerate the risk of hacking if they suddenly start hearing about a lot of it. Or they may get used to frequent reports and underestimate the risks.

Improve Digital Hygiene

Joseph Lorenzo Hall, Center for Democracy and Technology

As a nation we devote few resources to creating a common social understanding of how to keep people and computer systems safe.

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DealBook: Carlyle's Profit Fell in 4th Quarter as Growth Slowed

11:18 a.m. | Updated Most of the publicly traded private equity giants proudly reported glowing fourth-quarter earnings.

The Carlyle Group isn’t one of them.

The alternative investment giant disclosed on Thursday a 28 percent drop in fourth-quarter profit from the same time a year ago, as the growth of its portfolio companies slowed. That sent the company’s stock down more than 8 percent by midmorning, to $33.70.

Carlyle reported fourth-quarter profit of $182 million, expressed as economic net income, compared with $254 million in the year-earlier period. That amounts to 47 cents per unit. Analysts on average had expected about 66 cents per unit, according to a survey by Capital IQ.

And Carlyle’s distributable earnings, a measure the firm prefers because it tracks actual payouts to its limited partners, fell 24 percent, to $188 million. Using generally accepted accounting principles, Carlyle earned $12 million in net income.

The results fall short of those of rivals like the Blackstone Group and Kohlberg Kravis Roberts have reported. Private equity firms in general have gained from improvements in the markets, which have lifted the valuations of their portfolios and bolstered their core business of buying and selling companies.

Carlyle attributed the decline in economic net income to a smaller appreciation in the value of its portfolio. It reported a 4 percent gain for the quarter, compared with a 7 percent increase in the period a year earlier.

The decision to delay reaping carried interest from its latest mainstay fund, Carlyle Partners V, weighed on distributable earnings. The company opted to hold off, given the relative freshness of the fund and the influx of new investments like the buyouts of the TCW Group and Getty Images.

Carlyle highlighted its strong fund-raising and gains from selling investments. The firm raised $4.6 billion in new money for the quarter and $14 billion for the year, compared with a total of $6.6 billion raised in all of 2011. It generated $6.8 billion in realized proceeds for the quarter and $18.7 billion for the year, compared with $17.6 billion in 2011.

“We had another excellent year,” David M. Rubenstein, one of Carlyle’s co-chief executives, said in a statement. “Our performance over the past two years was marked by steady, continuous progress across our business.”

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DealBook: Office Depot and OfficeMax Announce Plans to Merge, After Erroneous Release

11:12 a.m. | Updated

Office Depot and OfficeMax announced plans to merge on Wednesday, just hours after an erroneous news release about the deal surfaced briefly.

Under the terms of the deal, Office Depot said it would issue 2.69 new shares of common stock for each share of OfficeMax. At that level, the transaction would value OfficeMax at $13.50, or roughly $1.19 billion, a premium of more than 25 percent to the company’s closing price last week.

The deal has been anticipated, as the companies face an increasingly difficult competitive environment. Both companies, which are burdened with big real estate footprints, have struggled against lower-priced rivals like Amazon.com and Costco. By uniting, the two companies should be able to reduce costs and better negotiate prices.

“In the past decade, with the growth of the Internet, our industry has changed dramatically,” Neil R. Austrian, chairman and chief executive of Office Depot, said in a statement. “Combining our two companies will enhance our ability to serve customers around the world, offer new opportunities for our employees, make us a more attractive partner to our vendors and increase stockholder value.”

While the deal has been years in the making, it was initially announced prematurely. A news release announcing the merger of the companies was posted on Office Depot’s Web site early on Wednesday morning, but it quickly disappeared.

Several news organizations reported the terms disclosed in the errant news release for Office Depot’s earnings. The details were buried on page four of the release, under the header “Other Matters.”

As the details filtered through the market, shares of the companies jumped. In premarket trading, Office Depot’s stock rose more than 7 percent, while OfficeMax shares were up more than 8 percent.

In a call with analysts, Mr. Austrian said that Office Depot’s webcast provider “inadvertently” published his company’s fourth-quarter earnings “well ahead of schedule.”

The episode is reminiscent of other times that companies’ earnings releases were published prematurely. Last fall, Google‘s third-quarter earnings were published three hours early, which the technology giant blamed on a mistake by R.R. Donnelley & Sons, the company’s printer.

Representatives for Office Depot and OfficeMax were not immediately available for comment on the erroneous release.

Strategically, the deal makes sense, as the companies face a changing competitive environment.

Combined, the companies reported about $4.4 billion in revenue for their third quarter of 2012; in comparison, Staples disclosed $6.4 billion in revenue for the same period.

Office Depot has also been under pressure from an activist hedge fund, Starboard Value, which sent a letter to the retailer’s board last fall. In it, Starboard called for more cost cuts and a greater focus on higher-margin businesses like copy and print services. With a 14.8 percent stake, Starboard is the company’s biggest investor.

In announcing the deal, the two companies emphasized their new financial heft.

With the merger, the retailers expect to generate $400 million to $600 million in annual cost savings. The combined entity would also have $1 billion in cash, providing additional firepower to invest in the business.

“We are excited to bring together two companies intent on accelerating innovation for our customers and better differentiating us for success in a dynamic and highly competitive global industry,” Ravi K. Saligram, chief executive of OfficeMax, said in a statement. “We are confident that there will be exciting new opportunities for employees as part of a truly global business.”

Each company will have an equal number of directors on the board of the combined retailer. Before the deal closes, OfficeMax will pay a special dividend of $1.50 a share to its shareholders.

OfficeMax was advised by JPMorgan Chase and the law firms Skadden, Arps, Slate, Meagher & Flom and Dechert. Office Depot was counseled by Simpson Thacher & Bartlett, while its board was advised by the Peter J. Solomon Company, Morgan Stanley and Kirkland & Ellis. Perella Weinberg Partners provided financial advice to the board’s transaction committee.

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Media Decoder Blog: NBC News Hires David Axelrod as Political Analyst

NBC News announced Tuesday that it had hired David Axelrod, the chief political strategist for both of Barack Obama’s presidential elections, as a full-time political analyst for the news organization.

He will appear on news programs for NBC’s broadcast network and for its cable news channel MSNBC. That channel has positioned itself aggressively as the liberal counterpart to the conservative-leaning Fox News Channel.

Mr. Axelrod’s hiring at MSNBC emulates Fox’s hiring of Karl Rove, who filled the similar political post for George W. Bush.

The path from political adviser to expert commentator on television has been well trod. George Stephanopoulos, who advised President Clinton , joined ABC News as a journalist. He is, of course, now the anchor of “Good Morning, America” for ABC.  And MSNBC already employs Steve Schmidt, the senior strategist for the losing campaign of Senator John McCain.

Mr. Axelrod most recently was named political director at the Institute of Politics as the University of Chicago, his alma mater, and a Distinguished Fellow at the Harris School of Public Policy.

He began his career as a journalist, working for the Chicago Tribune. He began in politics in 1984 and founded a media and consulting firm, Axelrod and Associates.

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Disruptions: Disruptions: 3-D Printing Is on the Fast Track

Will the future be printed in 3-D?

At first glance, looking at past predictions about the future of technology, prognosticators got a whole lot wrong. The Web is a garbage dump of inaccurate guesses about the year 2000, 2010 and beyond. Flying cars, robotic maids and jet packs still are nowhere near a reality.

Yet the prediction that 3-D printers will become a part of our daily lives is happening much sooner than anyone anticipated. These printers can produce objects, even rather intricate ones, by printing thin layer after layer of plastic, metal, ceramics or other materials. And the products they make can be highly customized.

Last week, President Obama cited this nascent technology during his State of the Union address — as if everyone already knew what the technology was.

He expressed hope that it was a way to rejuvenate American manufacturing. “A once-shuttered warehouse is now a state-of-the art lab where new workers are mastering the 3-D printing that has the potential to revolutionize the way we make almost everything,” Mr. Obama said. He has pushed new technologies before, like solar and wind power, as remedies for our nation’s problems, and those attempts have only revived the debate about the limitations of government industrial policy.

But this one shows more promise. The question is, can the United States get a foothold in manufacturing one 3-D printer at a time?

Hod Lipson, an associate professor and the director of the Creative Machines Lab at Cornell, said “3-D printing is worming its way into almost every industry, from entertainment, to food, to bio- and medical-applications.”

It won’t necessarily directly create manufacturing jobs, except perhaps for the printers themselves. Dr. Lipson, the co-author of “Fabricated: The New World of 3D Printing,” said that the technology “is not going to simply replace existing manufacturing anytime soon.” But he said he believed that it would give rise to new businesses. “The bigger opportunity in the U.S. is that it opens and creates new business models that are based on this idea of customization.”

In addition to the lab that the president mentioned, a federally financed manufacturing innovation institute in Youngstown, Ohio, schools are embracing the technology. The University of Virginia has been working to introduce 3-D printers into some programs from kindergarten through 12th grade in Charlottesville to prepare students for a new future in manufacturing.

“We have 3-D printers in classrooms, and in one example, we’re teaching kids how to design and print catapults that they then analyze for efficiency,” said Glen L. Bull, professor and co-director of the Center for Technology and Teacher Education. “We believe that every school in America could have a 3-D printer in the classroom in the next few years.”

The education system may want to speed things up. The time between predictions for 3-D printers and the reality of what they can accomplish is compressing rapidly.

For example, in 2010, researchers at the University of Southern California said that another decade would pass before we could build a home using a 3-D printer. Yet last week, Softkill Design, a London architecture collective, announced that it planned to make the first such home — which it will assemble in a single day — later this year. The home isn’t that pretty, and will look more like a calcified spider web than a cozy house, but it will show it can be done. The price of 3-D printers has also dropped sharply over the last two years, with machines that once cost $20,000, now at $1,000 or less. That’s partly because Chinese companies are driving down prices. Yes, China sees the opportunity in these things, even though the technology may undermine some of its manufacturing advantages.

“When it costs you the same amount of manufacturing effort to make advanced robotic parts as it does to manufacture a paperweight, that really changes things in a profound way,” Dr. Lipson said.

This leaves us with one more question about the future: When will these 3-D printers be able to make us flying cars, robotic maids and jet packs?

E-mail: bilton@nytimes.com

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Group of 20 Pledges to Let Markets Set Currency Values

MOSCOW — In a concerted move to quiet fears of a so-called currency war, finance officials from the world’s largest industrial and emerging economies expressed their commitment on Saturday to “market-determined exchange rate systems and exchange rate flexibility.”

In a statement issued at the conclusion of a conference here of the Group of 20, the finance ministers from the Group of 20 promised: “We will refrain from competitive devaluation. We will not target our exchange rates for competitive purposes.”

In its statement, the group also vowed to “take necessary collective actions” to discourage corporate tax evasion, particularly by preventing companies from shifting profits to avoid tax obligations. For instance, a number of big American companies, including Apple and Starbucks, have come under scrutiny recently for seeking out the friendliest tax jurisdictions.

Over all, the statement largely echoed one last week by seven top industrial nations pledging to let market exchange rates determine the value of their currencies. Currency devaluation can be used to gain competitive advantage because it makes a country’s exports cheaper.

“We all agreed on the fact that we refuse to enter any currency war,” the French finance minister, Pierre Moscovici, told reporters at the conference, which was held in a meeting center just a short walk from the Kremlin and Red Square.

In the statement on Saturday, the Group of 20 pointedly avoided any criticism of Japan, where stimulus programs backed by Prime Minister Shinzo Abe have kept interest rates near zero and flooded the economy with money — leading to a roughly 15 percent drop in the value of the yen against the dollar over the last three months.

The Japanese policies, which have reduced the cost of Japanese products around the world, were the primary cause of fears of a currency war.

In essence, the Group of 20 expressed a view that loose monetary policy, including steps that weaken currency values, are acceptable when used to stimulate domestic growth but should not be used to benefit in global trade.

Critics of that view say that it amounts to a distinction without a difference because loose monetary policies stimulate growth and bolster exports at the same time.

The United States has also used a loose monetary approach to aid in the economic recovery, in the form of “quantitative easing” by which the Federal Reserve buys tens of billions of dollars in bonds each month.

The chairman of the Federal Reserve, Ben S. Bernanke, who attended the conference in Moscow, gave brief remarks on Friday indicating support for Japan’s efforts.

Faster-growing, developing countries like Brazil and China have expressed concerns about the loose monetary policies of more established economies like Japan and the United States. The money created by policies like the Fed’s quantitative easing can prove destabilizing as it enters faster-growing economies.

The Group of 20 acknowledged this concern in its statement, saying: “Monetary policy should be directed toward domestic price stability and continuing to support economic recovery according to the respective mandates. We commit to monitor and minimize the negative spillovers on other countries of policies implemented for domestic purposes.”

As the three-day conference drew to a close, participants did not reach any new agreement on debt-cutting targets. Efforts to reach such a pact will continue at the annual Group of 20 summit meeting to be attended by President Obama and other world leaders in St. Petersburg in September.

But while the debt agreement was elusive, the Group of 20 leaders reiterated efforts to work together, promising to “resist all forms of protections and keep our markets open.”

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Supreme Court to Hear Monsanto Seed Patent Case

With his mere 300 acres of soybeans, corn and wheat, Vernon Hugh Bowman said, “I’m not even big enough to be called a farmer.”

Yet the 75-year-old farmer from southwestern Indiana will face off Tuesday against the world’s largest seed company, Monsanto, in a Supreme Court case that could deal a huge blow to the future of genetically modified crops, and also affect other fields from medical research to software.

At stake in Mr. Bowman’s case is whether patents on seeds — or other things that can self-replicate – extend beyond the first generation of the products.

It is one of two cases before the Supreme Court related to the patenting of living organisms, a practice that has helped give rise to the biotechnology industry but which critics have long considered immoral. The other case, involving a breast cancer risk test from Myriad Genetics, will determine whether human genes can be patented. It is scheduled to be heard on April 15.

Monsanto says that a victory for Mr. Bowman would allow farmers to essentially save seeds from one year’s crop to plant the next year, eviscerating patent protection. In Indiana, it says, a single acre of soybeans can produce enough seeds to plant 26 acres the next year.

Such a ruling would “devastate innovation in biotechnology,” the company wrote in its brief. “Investors are unlikely to make such investments if they cannot prevent purchasers of living organisms containing their invention from using them to produce unlimited copies.”

The decision might also apply to live vaccines, cells lines and DNA used for research or medical treatment, and some types of nanotechnology.

Many organizations have filed friend-of-the court briefs in support of Monsanto’s position — universities worried about incentives for research, makers of laboratory instruments, and some big farmer groups like the American Soybean Association, which say seed patents have spurred crop improvements. The Department of Justice is also supporting Monsanto’s argument.

BSA/The Software Alliance, which represents companies like Apple and Microsoft, said in a brief that a decision against Monsanto might “facilitate software piracy on a broad scale” because software can be easily replicated. But it also said that a decision that goes too far the other way could make nuisance software patent infringement lawsuits too easy to file.

Some critics of biotechnology say that a victory for Mr. Bowman could weaken what they see as a stranglehold that Monsanto and some other big biotech companies have over farmers, which they say has led to rising seed prices and the lack of high-yielding varieties that are not genetically engineered.

Patents have “given seed companies enormous power, and it’s come at the detriment of farmers,” said Bill Freese, science policy analyst for the Center for Food Safety, which co-authored a brief on the side of Mr. Bowman. “Seed-saving would act as a much needed restraint on skyrocketing biotech seed prices.”

Farmers who plant seeds with Monsanto’s technology must sign an agreement not to save the seeds, which means they must buy new seeds every year.

Monsanto has a reputation for vigorously protecting its intellectual property.

The Center for Food Safety, which has tracked the cases, said Monsanto has filed more than 140 patent infringement lawsuits involving 410 farmers and 56 small farm businesses, and has so far received $23.5 million in recorded judgments. The organization says there are numerous other cases in which farmers settle out of court or before a suit is filed.

Monsanto says it must stop infringers to be fair to the vast majority of farmers who do pay to use its technology.

But Monsanto typically exercises no control over soybeans or corn once farmers sell their harvested crops to grain elevators, which in turn sell them for animal feed, food processing or industrial use.

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DealBook: Anheuser-Busch InBev Revises Grupo Modelo Deal

11:38 a.m. | Updated

LONDON – Anheuser-Busch InBev moved on Thursday to rescue its $20.1 billion proposed takeover of Grupo Modelo of Mexico, the maker of Corona beer, by making concessions aimed at persuading American antitrust authorities to let the deal proceed.

Under the revised terms, Anheuser-Busch InBev offered to sell the rights to Corona and other Grupo Modelo brands in the United States to Constellation Brands, the world’s largest wine company, for $2.9 billion.

The agreement also would include the sale of a brewery close to the United States-Mexico border currently owned by Grupo Modelo, as well as the perpetual licensing rights to Grupo Modelo’s brands in the United States. If the revised deal goes through, Anheuser-Busch InBev will gain greater access to emerging markets like Mexico.

Anheuser-Busch InBev’s decision to sell Compañía Cervecera de Coahuila, the Mexican brewery that produces Corona, Corona Light and Modelo Especial, is an effort to satisfy regulators after the Justice Department sued last month to block the deal.

United States authorities had said the original merger proposal would increase Anheuser-Busch InBev’s control of the American beer market, enabling it to raise prices while reducing choice for local consumers.

Grupo Modelo is currently the third-largest beer company in the United States. Anheuser-Busch InBev is the largest, ahead of MillerCoors.

Analysts say that Anheuser-Busch InBev hopes the moves will address the antitrust issues raised by American authorities.

“We decided to restructure the transaction to address the concerns from the Justice Department,” Anheuser-Busch InBev’s chief executive, Carlos Brito, said in an interview with DealBook. “We are focused on getting this to the finish line.”

Mr. Brito declined to comment on the continuing negotiations with the Justice Department.

A Justice Department spokeswoman declined to comment on the company’s efforts to reduce its operations in the United States, though she added that authorities would give any proposal serious consideration. “At the same time, we would continue to prepare for litigation,” she added.

Anheuser-Busch InBev, which is the world’s largest brewing company, was itself created in 2008 through the $52 billion merger of Anheuser-Busch and the Belgian-Brazilian brewer InBev. The proposed $20.1 billion deal for Grupo Modelo would rank as the second-largest takeover in the beer industry after that merger, according to figures from the data provider Thomson Reuters.

In the last five years, Anheuser-Busch InBev also has announced more than 15 additional takeovers, according to the data provider Capital IQ. In a series of multibillion-dollar deals in the beer and liquor sector, a small number of companies like SABMiller and Diageo have gained control over many of top brands.

The move by the Justice Department to block the proposed takeover of Grupo Modelo is the first time in more than a decade that American regulators have tried to slow consolidation in the global beer industry.

The government’s lawsuit, announced last month, quoted internal company documents from Anheuser-Busch InBev to demonstrate that the company’s prices had been undercut by Grupo Modelo. Authorities contend that the proposed deal for Grupo Modelo would eliminate competition from the domestic beer market.

“This is the sort of product that matters to consumers,” William J. Baer, head of the Justice Department’s antitrust division, told reporters on Jan. 31. “If you have a very slight price increase that happens because of this deal, it could mean that consumers will pay billions of dollars more.”

The concessions also maintain Anheuser-Busch InBev’s focus on gaining access to the fast-growing Mexican market, which could help offset a slowdown in more mature markets like the United States and Western Europe.

“The quick settlement is no doubt surprising, but also shows practicality from the Anheuser-Busch InBev side,” Pablo Zuanic, an analyst at Liberum Capital, wrote in a note to investors on Thursday.

Anheuser-Busch InBev also said it had increased its projected annual cost savings from the Grupo Modelo deal by 66 percent, to $1 billion, from estimates provided when the deal was first announced last year. The terms of the original deal for Grupo Modelo remain unchanged, according to a company statement.

The brewing giant’s shares rose more than 6 percent in afternoon trading in Brussels on Thursday, while Constellation Brands’ stock price jumped almost 36 percent in trading in New York on Thursday morning.

For Constellation Brands, the agreement will give it greater access to the American beer market.

As part of the original terms of Anheuser-Busch InBev’s proposed takeover of Grupo Modelo, Constellation had agreed to pay $1.85 billion for the 50 percent stake that it did not already own in Crown Imports, a joint venture with the Mexican brewer.

Constellation would now gain control of the Corona brand across the United States, and plans to invest $400 million in the brewery that is being sold by Grupo Modelo to expand its business in the United States.

“This is a transformational acquisition,” Constellation’s chief executive, Robert S. Sands, said in a statement.

Lazard is advising Anheuser-Busch InBev on the deal, while Morgan Stanley is advising Grupo Modelo.

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Deal Professor: Unusual Moves in Confronting Apple's Huge Pile of Cash

The fight over Apple’s $140 billion cash pile is proving the adage that money can make people do strange things.

And it is not just Apple that is doing things it would not have done before. The hedge fund manager David Einhorn, famous for shorting stocks like Lehman Brothers, has gone long on Apple, betting heavily that Apple’s stock is undervalued — and blaming that eye-popping mountain of money.

While most of us would think that having tens of billions would be wonderful, it’s actually a problem for Apple. The money just sits there, not earning much in an environment of extremely low interest rates. And the problem is only getting worse. Apple is accumulating money at an enormous rate — more than $23 billion in the last quarter alone.

It was a more manageable issue when Apple was a rapidly growing stock, but since September Apple’s share price has fallen to roughly $470, from over $700.

According to Mr. Einhorn, roughly $145 of that share price represents Apple’s cash mountain. This means that the market is assigning a low multiple, about seven times earnings, to the rest of Apple’s business.

Multiples for Google are almost three times as much. Apple’s multiple is even less than Microsoft’s — a company whose revenue largely comes from PC operating software, which some people worry is a melting iceberg.

When it came to the buildup of cash, Steven P. Jobs, Apple’s co-founder and former chief executive, simply ignored a problem he had helped create. Mindful of Apple’s past financial difficulties before his return in 1997, he wanted a fortress of cash to protect the company. So he drew a line in the sand, saying no to dividends. After his death, Apple caved a little, announcing a dividend and share repurchase program worth $45 billion.

It’s still not enough for shareholders who want to increase Apple’s multiple and stock price. The fundamental idea is that shareholders could put this money to better use than Apple can, and that its stock would trade higher without the cash.

The problem is that even if Apple wanted to return all its cash to shareholders, it can’t. Much of the cash is held abroad in foreign subsidiaries. If the company repatriates it to return to shareholders, it would have to pay taxes on it. Instead, the company is letting the cash sit there in the apparent expectation that there will be federal tax relief.

It’s here that Mr. Einhorn enters the picture. He has been buying Apple shares for a few years, and his fund owns more than 1.3 million shares. The hedge fund magnate wants Apple’s stock to earn a higher multiple by dealing with the cash problem.

But Mr. Einhorn is also impatient and unwilling to wait for federal tax relief. Instead, he has a clever idea. At an investment conference last May, Mr. Einhorn proposed that Apple issue $500 billion of perpetual preferred stock free to all shareholders. The preferred stock would yield 4 percent and be freely tradable.

So, how will this increase the value of the company? It’s financial wizardry. If Apple issued debt, the market would be expected to subtract this value from Apple’s worth. But the preferred stock would not be treated as debt, for accounting purposes at least.

The only change would be that Apple’s income would be reduced by the amount of the interest paid on $500 billion, or $20 billion a year. If Apple stays at the same multiple, it would give the company a net worth of $300 billion or so. But now the $500 billion in preferred stock would be added, making the company worth $800 billion.

How can one plus one equal four? It depends on whether the market thinks that the $500 billion is not debt and never has to be repaid. If so, then this amount will not be deducted from Apple’s worth. It’s something that may work in theory in our sometimes puzzling financial markets, but no company has ever tried it.

Some experts are skeptical. Aswath Damodaran, a finance professor at New York University, has called the plan financial alchemy and written that it would “not add value to the company, not one cent.” When asked to comment, Mr. Einhorn said, “Professor Damodaran’s analysis brings to memory the old joke about the economist who refused to pick up a $100 bill on the street because in an efficient economy, there can’t be $100 bills lying around.”

Apple’s response to Mr. Einhorn has been equally clever. One would think that the maker of the iPad would just sit above the fray and do what it has traditionally done — ignore its shareholders. But with a declining stock price, that may no longer be a luxury Apple can afford. So, it has engaged with Mr. Einhorn to discuss his proposal. And the notoriously shareholder-unfriendly company has turned strangely in favor of good corporate governance.

In its latest proxy statement, Apple proposes to amend its charter to allow for election of directors only by a majority of shareholders. It also proposes to eliminate a provision called “blank check preferred,” which allows a company to issue preferred shares in unlimited number and type. Almost every company has this provision, but shareholder activists hate it because it can be used as a takeover defense, allowing a company to issue preferred stocks with significant voting rights to a friendly party.

While the proposal to eliminate the preferred shares appears worthy and has been endorsed by the California Public Employees’ Retirement System, the giant pension fund, this proposal is really about Mr. Einhorn.

The amendment has the convenient effect of eliminating the board’s ability to adopt the hedge fund magnate’s plan. Apple says that it just wants to be a good corporate citizen and shareholders can still vote to adopt Mr. Einhorn’s plan. But let’s face it, Apple would be one of the few companies in the United States to ever abolish its blank check preferred provision.

Apple has not been a paragon of corporate governance. That may not be surprising, given that its board has directors like Millard S. Drexler of J. Crew, who surreptitiously took his company private. And Apple has received negative marks in recent years from proxy advisory firms like Institutional Shareholder Services for giving its chief executive, Timothy D. Cook, almost $400 million in stock options in one year.

It’s an odd state of events.

By all accounts, it would appear to be a topsy-turvy world. Apple has turned defensive, while Mr. Einhorn is picking a public fight with a company he is betting on, instead of betting against.

Perhaps this column should have instead started with an adage from the movie “Wall Street” that money “makes you do things you don’t want to do.”

Yet Apple is not doing itself any favors by trying to do an end run around Mr. Einhorn.

He has sued Apple, claiming that the company’s proposal violates the securities laws, but the dispute is “a silly sideshow,” as Mr. Cook put it on Tuesday. Even if Mr. Einhorn wins, it would only force Apple to have a separate vote on the preferred share issue, something it is likely to win.

Even so, it might be better if Apple simply addressed Mr. Einhorn’s proposal head-on. After all, his proposal is clever, but untested. It may work, but it may not. Why should the world’s most valuable company be run as an experiment in finance?

Still, the world is changing. Apple may be a highflier, but its growth prospects are not as exciting as they seemed to be a year ago. Its stock may simply be deflating from an overheated place.

And that’s the oddest thing of all. Despite Apple’s growing cash pile, the company’s value is shrinking. But instead of focusing on making Apple an even better business, shareholders are trying to rescue their bubblelike bets with financial gimmickry, and Apple is engaging in its own gimmicks to defeat them. Even Apple can be consumed by the strange world of Wall Street.

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A version of this article appeared in print on 02/13/2013, on page B7 of the NewYork edition with the headline: Unusual Moves in Confronting Apple’s Mountain of Cash.

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DealBook: Ryanair Indicates Regulators Will Reject Aer Lingus Deal

Ryanair, the discount European airline, is preparing for a fight with regulators over its deal to buy Aer Lingus.

On Tuesday, Ryanair said the European Commission “intends to prohibit” its offer for Aer Lingus, despite the airline’s attempts to appease antitrust concerns. Ryanair added that it planned to appeal the decision.

“It appears clear from this morning’s meeting, that no matter what remedies Ryanair offered, we were not going to get a fair hearing and we’re going to be prohibited regardless of competition rules,” Robin Kiely, head of communications for the airline, said in a statement.

The deal has been troubled from the start.

Ryanair moved to buy Aer Lingus last summer, offering 694 million euros ($931 million) in its third attempt to buy the Irish carrier. Management trumpeted the opportunities, saying the deal would create “one strong Irish airline group capable of competing with Europe’s other major airline groups.”

But the board of Aer Lingus immediately rejected the hostile takeover bid, saying it undervalued the airline and would raise antitrust concerns. Ryanair’s first bid to buy Aer Lingus in 2007 was blocked for antitrust reasons.

Since then, Ryanair has sought to assuage concerns about competition, lining up buyers for various operations and routes.

Even so, regulators notified Ryanair on Tuesday that they would block the deal. Ryanair now says it has instructed its lawyers to “appeal any prohibition decision” to the courts.

“This decision is clearly a political one to meet the narrow, vested interests of the Irish government and is not based on competition law,” Ryanair said in a statement.

Aer Lingus supported the regulatory decision, saying it was “a much stronger airline today than it was at the time of the previous Ryanair offers” and that it was the only rival to Ryanair on a large number of routes.

“The reasons for prohibition are therefore even stronger in this instance than with the previous offers,” Aer Lingus said in a statement. “Therefore, it was and remains Aer Lingus’ position that the offer should never have been made.”

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DealBook: Goldman Names Gregg Lemkau as New Co-Head of M.&A.

Goldman Sachs named Gregg R. Lemkau as a new co-head of global mergers and acquisitions on Monday, according to an internal memorandum reviewed by DealBook.

Mr. Lemkau, who has been based in London since 2008, will hold that title along with Gene T. Sykes, who has served as the sole co-head since the departure of Yoel Zaoui in April.

“Gregg will work closely together with Gene, as well as with Michael Carr, head of Americas M.&A., to lead this important client franchise, which is core to our investment banking business,” Goldman’s three heads of investment banking, Richard J. Gnodde, David Solomon and John S. Weinberg, wrote in the memo.

Mr. Lemkau is currently the head of mergers for Europe, the Middle East, Africa and Asia Pacific, and was previously a global co-head of the technology, media and telecommunications group. He was previously the chief operating officer of the firm’s investment bank and co-head of its health care banking group.

He also comes from a banking family of sorts. His brother Curt, known as Chip, is a wealth management executive at Goldman, according to Financial Industry Regulatory Authority records. And a sister, Kristin, is a senior media relations executive at JPMorgan Chase.

He will be succeeded as the head of mergers for Europe by Gilberto Pozzi, who currently is a co-head of Goldman’s global consumer retail group. Mr. Pozzi will in turn be succeeded by F.X. de Mallmann.

Here is the memo for Mr. Lemkau:

We are pleased to announce that Gregg Lemkau will become co-head of Global Mergers & Acquisitions alongside Gene Sykes. Gregg will work closely together with Gene, as well as with Michael Carr, head of Americas M.&A., to lead this important client franchise which is core to our investment banking business.

Gregg has been head of Mergers & Acquisitions for EMEA and Asia Pacific since 2011. Prior to this, he was global co-head of the Technology, Media and Telecom Group and served as chief operating officer for the Investment Banking Division. Gregg serves as co-chair of the Firmwide Commitments Committee and is a member of the Partnership Committee and the Investment Banking Division Operating Committee. He joined Goldman Sachs as an analyst in the Mergers & Acquisitions Department in 1992 and was named managing director in 2001 and partner in 2002.

Please join us in congratulating Gregg and wishing him continued success in his new role.

Richard J. Gnodde
David Solomon
John S. Weinberg

And here is the one for Mr. Pozzi:

We are pleased to announce that Gilberto Pozzi will become head of EMEA Mergers & Acquisitions. In his new role, Gilberto will strive to further deepen the dialogue with our clients on their M.&A. strategic objectives, continue to enhance our execution standards and share best practices across industry and country teams. Gilberto will retain responsibilities for many of his clients in the consumer and retail sector while sourcing and executing M.&A. transactions across various countries and industry groups in EMEA.

Gilberto has been co-head of the Global Consumer Retail Group since 2010. Previously, he was head of the Consumer Retail Group for EMEA. Gilberto joined Goldman Sachs as an associate in London in 1995 and was named managing director in 2003 and partner in 2008.

Please join us in congratulating Gilberto and wishing him continued success in his new role.

Richard J. Gnodde
David Solomon
John S. Weinberg

And here is the one for Mr. de Mallmann:

We are pleased to announce that F.X. de Mallmann will become co-head of the Global Consumer Retail Group alongside Kathy Elsesser. In addition to his new role, F.X. will continue to be responsible for Investment Banking Services (I.B.S.) in EMEA.

F.X. has been head of I.B.S. in EMEA since January 2012. Prior to this, he was head of the Financing Group in EMEA from 2008 to 2011. Before that, F.X. served as chief operating officer for the Investment Banking Division. From 2002 to 2007, he served as head of Investment Banking for Switzerland. F.X. joined Goldman Sachs as an analyst in London in 1993 and was named managing director in 2003 and partner in 2004.

Please join us in congratulating F.X. and wishing him continued success in his new role.

Richard J. Gnodde
David Solomon
John S. Weinberg

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Boeing 787 Completes Test Flight

A Boeing 787 test plane flew for more than two hours on Saturday to gather information about the problems with the batteries that led to a worldwide grounding of the new jets more than three weeks ago.

The flight was the first since the Federal Aviation Administration gave Boeing permission on Thursday to conduct in-flight tests. Federal investigators and the company are trying to determine what caused one of the new lithium-ion batteries to catch fire and how to fix the problems.

The plane took off from Boeing Field in Seattle heading mostly east and then looped around to the south before flying back past the airport to the west. It covered about 900 miles and landed at 2:51 p.m. Pacific time.

Marc R. Birtel, a Boeing spokesman, said the flight was conducted to monitor the performance of the plane’s batteries. He said the crew, which included 13 pilots and test personnel, said the flight was uneventful.

He said special equipment let the crew check status messages involving the batteries and their chargers, as well as data about battery temperature and voltage.

FlightAware, an aviation data provider, said the jet reached 36,000 feet. Its speed ranged from 435 to 626 miles per hour.

All 50 of the 787s delivered so far were grounded after a battery on one of the jets caught fire at a Boston airport on Jan. 7 and another made an emergency landing in Japan with smoke coming from the battery.

The new 787s are the most technically advanced commercial airplanes, and Boeing has a lot riding on their success. Half of the planes’ structural parts are made of lightweight carbon composites to save fuel.

Boeing also decided to switch from conventional nickel cadmium batteries to the lighter lithium-ion ones. But they are more volatile, and federal investigators said Thursday that Boeing had underestimated the risks.

The F.A.A. has set strict operating conditions on the test flights. The flights are expected to resume early this week, Mr. Birtel said.

Battery experts have said it could take weeks for Boeing to fix the problems.

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