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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DealBook: Barnes & Noble Chairman Leonard Riggio to Bid for Bookstore's Retail Business

The chairman of Barnes & Noble plans to bid for the retail business of the bookstore chain he started 40 years ago, as the company struggles with a changing competitive landscape.

On Monday, Leonard Riggio told the company’s board that he would make an offer for Barnes & Noble Booksellers, barnesandnoble.com and other retail assets. The proposal would not include the e-book division, Nook Media.

Like many retailers, the company is confronted by waning profit in its core business, as online retailers and other competitors gain market share. Barnes & Noble recently warned that earnings would be weak in the latest quarter, with losses rising in its Nook Media division.

Conceived as a serious competitor to Amazon.com’s Kindle, the Nook has instead become an also-ran in the race for digital book supremacy. The Kindle remains the top-selling dedicated e-reader, while the iPad consistently leads the competition among tablets. Amazon’s Kindle app has also maintained a huge lead in popularity, limiting Barnes & Noble’s reach across the broader digital bookselling landscape.

It is the boldest move yet by Mr. Riggio, the company’s largest shareholder who owns nearly 30 percent of Barnes & Noble, to try and save the company.

After building a small chain of college bookstores, Mr. Riggio in the 1970s bought the Barnes & Noble name and the flagship location in Manhattan, which had run into trouble. Over the next several decades, he built the company into the nation’s biggest brick-and-mortar bookseller.

In recent years, Mr. Riggio has fended off challenges from the likes of the billionaire Ronald W. Burkle. As part of that effort, Mr. Riggio argued, in large part, that the company was well-positioned in the future by betting on the Nook and digital books.

Others believed in the promise of the e-reader as well.

Microsoft paid $300 million in April for a 17.6 percent stake in the Nook business, valuing it then at $1.7 billion. Microsoft also secured Barnes & Noble’s commitment to produce an e-reader app for its Windows 8 operating system. And in December, the British publisher Pearson agreed to buy a 5 percent stake for $89.5 million.

Mr. Riggio, plans to negotiate the price with the board, according to a regulatory filing. The proposal is expected to be mainly in cash. The retailer’s board had already been weighing whether to spin off its Nook unit.

Barnes & Noble said in a statement that it had formed a special board committee of three directors – David G. Golden, David A. Wilson and Patricia L. Higgins – to consider Mr. Riggio’s proposal. The committee will be advised by Evercore Partners and the law firm Paul, Weiss, Rifkind, Wharton & Garrison.

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This post has been revised to reflect the following correction:

Correction: February 25, 2013

An earlier version of this article referred imprecisely to the role of its largest shareholder, Leonard Riggio, in the company’s history. While Mr. Riggio founded the modern company that acquired the name in the 1970s, William Barnes and G. Clifford Noble opened the original Barnes & Noble bookstore, in 1917.

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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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Media Decoder Blog: Hong Kong Disneyland Turns a Profit

LOS ANGELES — Mickey Mouse is finally making money in Hong Kong.

The Walt Disney Company on Monday said that its seven-year-old theme park and resort complex in Hong Kong turned a profit for the first time — a modest $14 million, but a profit nonetheless — following an aggressive expansion costing several hundred million dollars.

To compare, the park lost about $31 million dollars during the previous fiscal period. As recently as 2008, the park was losing roughly $200 million a year. Disney owns 48 percent of Hong Kong Disneyland, with the balance controlled by the local government.

Disney said attendance at the park increased 13 percent last year, to 6.7 million people. Revenue was up 18 percent; occupancy at two themed hotels, which have a combined 1,000 rooms, stood at 92 percent.

Hong Kong Disneyland has been the smallest of Disney’s theme parks around the world, limiting interest in annual passes and repeat attendance. But a continuing expansion to increase the size of Hong Kong Disneyland by 25 percent appears to have had dramatic effects.

Already open are new rides themed to the “Toy Story” movies and an Old-West area called Grizzly Gulch; coming this spring is another area called Mystic Point, billed by Disney as “the site of mysterious forces and supernatural events in the heart of a dense, uncharted rain forest.”

One question for the future: To what degree, if any, will Disney’s mega-resort in Shanghai, now under construction and scheduled to open in 2015, take wind out of Hong Kong Disneyland’s sails?

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A First Step on Continent for Google on Use of Content

PARIS — Publishers in France say they have struck an innovative agreement with Google on the use of their content online. Their counterparts elsewhere in Europe, however, say the French gave in too easily to the Internet giant.

The deal was signed this month by President François Hollande of France and Eric E. Schmidt, the executive chairman of Google, who called it a breakthrough in the tense relationship between publishers and Google, and as a possible model for other countries to follow.

Under the deal, Google agreed to set up a fund, worth €60 million, or $80 million, over three years, to help publishers develop their digital units. The two sides also pledged to deepen business ties, using Google’s online tools, in an effort to generate more online revenue for the publishers, who have struggled to counteract dwindling print revenue.

But the French group, representing newspaper and magazine publishers with an online presence, as well as a variety of other news-oriented Web sites, yielded on its most important demand: that Google and other search engines and “aggregators” of news should start paying for links to their content.

Google, which insists that its links provide a service to publishers by directing traffic to their sites, had fiercely resisted any change in the principle of free linking.

The agreement dismayed members of the European Publishers Council, a lobbying group in Brussels, which has been pushing for a fundamental change in the relationship between publishers and Google. The group criticized the French publishers for breaking ranks and striking a separate business agreement that has no statutory standing.

The deal “does not address the continuing problem of unauthorized reuse and monetization of content, and so does not provide the online press with the financial certainty or mechanisms for legal redress which it needs to build sustainable business models and ensure its continued investment in high-quality content,” Angela Mills Wade, executive director of the publishers council, said in a statement.

German publishers were also scornful, with Anja Pasquay, a spokeswoman for the German Newspaper Publishers’ Association, saying: “Obviously the French position isn’t one that we would favor. This is not the solution for Germany.”

Germany has been in the forefront of the push to get Google to share with online news publishers some of the billions of euros that the company earns from the sale of advertising. A proposed law, endorsed by the government of Chancellor Angela Merkel and working its way through the federal legislature, would grant a new form of copyright to digital publishers. If enacted, it could allow publishers to charge search engines or aggregators for displaying even snippets of news articles alongside links to other Web sites.

Mr. Hollande had vowed to introduce similar legislation this winter if Google and the publishers did not come to terms. It appears that Google, which had threatened to stop indexing French Web sites’ content if it had to pay for links, has sidelined the threat of legislation, at least for now; the agreement will be reviewed after three years, Mr. Hollande has said.

Under the deal, Google says it will help the publishers use several of its digital advertising services, including AdSense, AdMob and Ad Exchange, more effectively.

Publishers are already free to use these services, and it was not immediately clear how they would be able to generate more revenue from them; this part of the accord remains confidential, both sides say, because they are still negotiating the fine print.

“This agreement can help accelerate the move toward greater advertising revenues in the digital world,” said Marc Schwartz of Mazars, a consulting firm, who is serving as an independent mediator in the talks. “I’m not saying we have done everything, but it’s a first step in the right direction.”

More has been said about the planned innovation fund. Publishers will submit proposals to the fund, which will select ideas to finance and develop, with the involvement of Google engineers.

“The idea is that it would inject innovation into the sector in France,” said Simon Morrison, copyright policy manager at Google.

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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: American and US Airways Announce Merger Agreement

8:53 a.m. | Updated

Ending a yearlong courtship by US Airways, American Airlines agreed to merge with the smaller carrier, paving the way for the creation of the nation’s largest airline.

The boards of the companies have unanimously approved the deal, valued at $11 billion, according to a news release on Thursday morning. A merger would bolster American’s domestic footprint, strengthen its presence in the Northeast and give it a bigger network to attract business travelers and corporate accounts.

Under the terms of the deal, US Airways shareholders would own 28 percent of the combined airline, while American Airlines shareholders, creditors, labor unions and employees would own 72 percent.

The merger would create a company with the size and breadth to compete against United Airlines and Delta Air Lines, which have grown through mergers of their own in recent years and are currently the biggest domestic carriers. The combined airline will have more than 100 million frequent fliers.

But while United and Delta went through bankruptcies and mergers in the last decade, American has been steadily losing ground while racking up losses that have totaled more than $12 billion since 2001. It was the last major airline to seek court protection to reorganize its business, filing for bankruptcy in November 2011.

The wave of big mergers in the industry has created healthier and more profitable airlines that are now better able to invest in new planes and products, including Wi-Fi, individual entertainment screens and more comfortable seats for business passengers. But some consumer advocates said they worried that reducing the number of airlines would lead to higher fares over the long run and allow airlines to increase revenue by imposing new or higher fees.

The deal, which was completed in recent days, could be formalized as American leaves bankruptcy. W. Douglas Parker, the chairman and chief executive of US Airways, would take over as American’s chief executive. Thomas W. Horton, chairman and chief executive of the AMR Corporation, American’s parent, would be chairman of the combined company, though his tenure could be limited.

“I have been a long proponent of consolidation in the industry,” Mr. Parker said on a conference call. “And this is the last major piece needed to rationalize the industry and make it profitable.”

Mr. Parker said that the two airlines have only 12 routes overlapping out of a combined 900 routes that the two airlines serve together. In addition, he said, more cities would be service: American flies to 130 cities that US Airways does not fly, and, likewise, US Airways flies to 62 cities that are not served by American.

“This is an extremely complementary merger,” Mr. Parkersaid.

The combined airline will offer 6,700 daily flights to 336 destinations in 56 countries. It said that it expected to keep all its hubs.

The merger still needs to pass several steps. It must be approved by American’s bankruptcy judge in New York. US Airways shareholders would also have to approve the deal.

In addition, it will be reviewed by the Justice Department’s antitrust division, though analysts expect regulators to clear the deal. The two companies expect the merger be completed in the third quarter.

If approved, the nation’s top four airlines — American, United, Delta and Southwest Airlines — would control nearly 70 percent of the domestic market.

The merger is a victory for Mr. Parker. Over the last year, he persuaded American’s creditors that the carrier needed to expand its network to compete. In April, he won the critical backing of American’s three labor groups, which defied American’s management and publicly endorsed a deal with US Airways.

The biggest challenge for the merged company, to be called American Airlines, will be to integrate operations over the next couple of years. That is no easy task since airline mergers are often rocky — involving complex technological systems, big reservation networks as well as large labor groups with different corporate cultures that all need to be seamlessly combined.

United angered passengers last year after a series of merger-related computer and reservation mistakes, and late and delayed flights.

Mr. Parker has done this before. In 2005, when he was the head of America West, he engineered a merger with the larger US Airways.

In this case, the merged American Airlines will still be based in Fort Worth and have a combined 94,000 employees, 950 planes, 6,500 daily flights, eight major hubs and total revenue of nearly $39 billion. It would be the market leader on the East Coast, the Southwest and South America. But it would remain a smaller player in Europe, where United and Delta are stronger. The merger does little to bolster American’s presence in Asia, where it trails far behind its rivals.

American has major hubs in Dallas, Miami, Chicago, Los Angeles and New York. US Airways has hubs in Phoenix, Philadelphia and Charlotte, N.C., and has a big presence at Ronald Reagan National Airport in Washington.

In reviewing previous mergers, federal regulators have not focused on the overall size of the combined airline but instead looked at whether a merger would decrease competition in individual cities. To do so, regulators examine specific routes, or city-pairs, and look at whether a merger reduces the number of airlines there.

The last time the Justice Department challenged a merger was the proposed combination between United Airlines and US Airways in 2001. It rejected that on the ground that it would reduce consumer choice and possibly lead to higher fares.

Since then, the department has allowed a wave of big mergers that have reshaped the industry, said Alison L. Smith, a former antitrust official and now a partner in the law firm McDermott Will & Emery.

American and US Airways only have about 12 overlapping routes, a figure that is unlikely to set off regulatory opposition, she said. One problem, however, could come up at National Airport, where the combined carriers hold a market share of about 60 percent. There, regulators might request that American give up some takeoff and landing rights before approving the merger.

Regulators sought similar concessions from United at Newark Liberty International Airport after its merger with Continental Airlines.

It is also unclear whether American needs all of its combined hubs. Analysts pointed out that Phoenix was at risk because of its proximity to Dallas, since it makes little sense to have two big hubs so close to each other.

Despite the increased concentration, consumers can still expect to find vibrant competition, said William S. Swelbar, a research engineer at the Massachusetts Institute of Technology’s International Center for Air Transportation.

“We will have four very big, very vigorous competitors in the market,” he said.

Travelers are better served by bigger airlines offering more connecting flights and more destinations, analysts say. Consumers today can easily compare fares and shop for the cheapest flight online, which helps keep airfares in check.

But Kevin Mitchell, chairman of the Business Travel Coalition, disagreed. He said consumers would see few benefits to offset the merger’s negative effects — including “reduced competition, higher fares and fees, and diminished service to small and midsize communities.”

Michael J. de la Merced contributed reporting.

A version of this article appeared in print on 02/14/2013, on page B1 of the NewYork edition with the headline: Air Carriers Are Said To Agree To a Merger.

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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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In Venture With NBC, Esquire Expands Into Television

Esquire, the magazine that has relied on the printed page for the last 80 years, is about to make a move into television.

On Monday, NBCUniversal will announce that it has concluded a deal with Hearst Magazines to rebrand one of NBC’s existing cable properties, the G4 network, as a new entity, the Esquire Network. The purpose: to refashion a cable channel that has been devoted to video gaming and devices into what NBC’s top cable executive described as “an upscale Bravo for men.”

Only last week, that executive, Bonnie Hammer, added Bravo — the network of “Real Housewives” and other female-centric lifestyle programming — to the portfolio of cable networks she oversees, so the juxtaposition is well timed. The Esquire Network will have its debut on April 22. It will be available in 62 million homes with cable or satellite service.

Neither side would discuss the specific financial arrangements, but said the renamed channel was not a joint venture. “We own G4,” Ms. Hammer said. “There are no ownership issues here.” David Carey, president of Hearst Magazines, the publisher of Esquire, said, “We have a strong interest in this succeeding.”

For viewers of the G4 network, the change will mean a sharp shift from the gaming-centered programming that attracted some men to shows that will draw an audience that NBC executives are persuaded Esquire stands for: “The modern man, what being a man today is all about,” as Adam Stotsky, the general manager of the new network, said.

Specifically, NBC is hoping to capture a more educated, affluent, sophisticated male viewer, who is not being served, as its research concluded, by the male-oriented, nonsports programming on cable channels like Discovery and Spike. “Much of today’s programming targets men in a one-dimensional way,” Mr. Stotsky said, with what he called “down-market shows” about “tattoos or pawn shops or storage lockers or axes or hillbillies.”

The Esquire Network will offer shows aimed at capturing other areas of interest, like cars, politics, world affairs, travel, fashion and cooking. David Granger, Esquire’s editor in chief, said he expected the programming to be “not duplicative of what readers find in the magazine, but in the same wheelhouse.”

Still, he said, there could be some crossovers. For example, “Funny Joke From a Beautiful Woman,” a feature Esquire has included on its Web site, could work as a piece between series, Mr. Granger said.

But Mr. Stotsky said his development staff would generate the program ideas. One of the network’s first original series is “Knife Fight,” a reality competition about “after-hours cook-offs” among young chefs.

The other original series is a travel show featuring celebrities called “The Getaway.”

Neither of those ideas originated in an editorial meeting at Esquire, but as Mr. Carey said, “This is not the magazine on TV; that would not work. The idea is to capture the essence of the magazine.”

Ms. Hammer called that the magazine’s brand. She said NBC had been aware of the limits of G4’s programming niche.

“Realistically, guys who are into gaming are not necessarily watching television,” she said. “If this was going to come under my portfolio, I’m a little brand crazy, so I said, let’s create a real brand, define a space, understand who we are programming for.”

Mr. Stotsky was responsible for seeking potential partners, and after some early discussions with Mr. Carey and Mr. Granger, an alliance with Esquire quickly gained traction.

Mr. Carey said that Hearst Magazines was “very focused on partnerships.” He pointed to its success in creating magazines tied to cable channels like the Food Network and HGTV.

Beyond the two original shows to be announced on Monday, the new channel will be filled in the short run with acquired programs — many, Mr. Stotsky said, from the library owned by NBCUniversal.

Two comedies that will appear are in the category of more sophisticated recent comedies, he said. One, “Parks and Recreation,” is owned by NBC and still on the broadcast network. It will get its first cable exposure on the Esquire Network.

The other, “Party Down,” about young caterers, achieved some cult status when it played on the cable network Starz three years ago.

That may mean that the actor Adam Scott, who stars in both shows, is something of the ideal for the Esquire Network. Mr. Stotsky said the channel is hoping to rely on the magazine’s “80 years of insight into what makes men tick.” He added, “When you look at Esquire as a print magazine, it’s really about a point of view, a way of life, telling intelligent witty stories.”

Mr. Granger said the magazine had survived both the media shift from print to digital and the recent recession, even managing to increase its circulation figure, to about 725,000 a month, in December. This was accomplished, he said, by creatively expanding onto digital platforms including Web site and tablet applications. The median age of the magazine’s reader in the last several years falls in the range of 38 to 40 years old, he said.

Mr. Carey said current circulation figures alone should not reflect the brand’s value. “It’s a funny thing about magazines,” he said. “The population of people who know and respect and see a particular magazine brand as an authority is usually much bigger than the audience of the actual magazine. I believe NBC saw the opportunity that the built-in awareness and respect for Esquire was multiples of the actual magazine audience.”

Mr. Carey said he “absolutely saw only an upside” for Esquire. “As we’ve seen from our other ventures, when you have both print and television working together, it clearly lifts all boats.”

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