McClendon’s behavior has been shamelessly greedy, as has that of many of his board members. Investors should hope that each is thrown out.

Icahn wrote in a SEC filing:

We are not alone in criticizing this board.  Shareholders have filed lawsuits, withhold campaigns and have otherwise voiced disapproval and all three major proxy advisory firms (i.e., ISS, Glass, Lewis and Egan-Jones) have advised shareholders to withhold votes from directors at the 2012 annual meeting.  Chesapeake shareholders will benefit neither from a constant stream of negative news reflecting upon the companies troubled past, nor from a half hearted attempt by the board to make the minimum possible number of changes to skate by for one more year.  The board must not only find a way to eliminate the enormous funding gap, but also the more substantial creditability gap.

And,

To engender any meaningful credibility among shareholders, corporate governance reforms cannot, in our view, be led by directors whose irresponsible actions have brought this company to the edge of the proverbial cliff.  Accordingly, we propose that at least 4 of the current directors (other than Louis Simpson) should be immediately replaced by two persons designated by us and two persons designated by another large shareholder such as Southeastern Asset Management, the company’s largest shareholder.  In our opinion, only when these changes are effectuated will the board be truly independent and more importantly will investors come to believe that promises made will be promises kept; when a capital plan is agreed upon it will be maintained, not diverged from as it has in the past.

The SEC site noted that the SEC alleges that George Levin and Frank Preve from Fort Lauderdale area raised more than $157 million from 173 investors in less than two years.  Today’s allegations are that they issued promissory notes from Levin’s company and interests in a private investment fund they operated.

The SEC noted that they used the investor funds to purchase discounted legal settlements from former Florida attorney Scott Rothstein through his law firm Rothstein Rosenfeldt and Adler PA. Another charge is that the settlements Rothstein sold were not real and the supposed plaintiffs and defendants did not exist.

Rothstein reportedly used the funds in classic Ponzi scheme fashion to make payments due other investors and support his lavish lifestyle.

Apparently some bad guys do get caught.  The SEC report says that Rothstein’s Ponzi scheme collapsed in October 2009 and that he is currently serving a 50-year prison sentence.

FULL COMPLAINT

JON C. OGG

Icahn’s offer of $30/share for CVR’s two refineries and majority stake in fertilizer maker CVR Partners L.P. (NYSE: UAN) also includes a contingency payment if he is able to sell the company’s bits for more than that. The two refineries are relatively small, totaling about 185,000 barrels/day together, and are not likely to fetch much more than $200-$250 million. The value will be in the crude stocks, and that’s been dropping every day for more than a month now. The fertilizer operation is solid, but small.

Don’t be surprised if Icahn holds on to CVR for longer than many people expected. The value is in the crude and he can probably afford to wait for the price to go back up.

Paul Ausick

Ackman had pushed for replacing Green with Hunter Harrison, former CEO of Canadian National Railway Co. (NYSE: CNI), but following the coup Ackman now said not to expect a coronation, “We’re going to do a proper job, we’re going to meet all the candidates and do it the right way.”

Canadian Pacific’s problems, at least according to Ackman, are due to high operating costs and he wants to reduce those costs. Ackman’s stated goal is to lower CP’s operating ratio — that is cost as a percentage of revenue — from around 80% to 66%. That would match the operating ratio at Canadian National, Harrison’s former company. Most of the credit for CN’s success, however, is attributed to Harrison’s predecessor.

CP’s main problem is that it operates mainly in western Canada in a nasty climate with difficult topography. The company hauls mainly commodity minerals and is captive to swings in the market for those minerals. Lowering costs won’t be easy once the workforce is trimmed.

CP’s ability to compete with the likes of Union Pacific Corp. (NYSE: UNP), CSX Corp. (NYSE: CSX), Burlington Northern Santa Fe (BNSF), owned by Warren Buffett’s Berkshire Hathaway Inc. (NYSE: BRK-A), and Norfolk Southern Corp. (NYSE: NSC) is dubious, given that CP is much smaller than any of these and that the only likely merger possibility is Kansas City Southern (NYSE: KSU). A potential merger between Canadian National and BNSF was squashed by regulators in 1999, so a tie-up with one of the larger railroads is unlikely.

What is likely is that Ackman has shaken up sleepy Canadian companies and shareholders. This was Canada’s first big, public battle over corporate direction and many observers believe that it’s just the beginning.

Who could be next? A good bet might by phone maker Research in Motion Ltd. (NASDAQ: RIMM) whose recent struggles are well documented.

CP did not get much of a share price boost yesterday, closing at $75.07 in a 52-week range of $44.74-$79.91. The stock is inactive in pre-market trading this morning.

Paul Ausick

Apple Inc. (NASDAQ: AAPL) was a large gain by Appaloosa Management, with a gain of more than 500,000 shares up to 685,000 shares worth some $303 million. This of course was worth more in April. Farallon put up a new position of just over 192,000 worth some $116 million. Janus only lowered its stake by 0.5% and Apple is still its largest holding at over $3.8 billion, while Vanguard lifted its stake by about 5% worth over $23 billion.

Caesars Entertainment Corporation (NASDAQ: CZR) was a strange position on the surface, but easy to explain later. Paulson & Co. was shown to have lifted its stake to 12.37 million shares from NO SHARES at the end of 2011. The problem is that Paulson owned Caesars shares already before the IPO but it was not public before the end of 2011.

Computer Sciences Corporation (NYSE: CSC) was a 2.4 million share stake by Greenlight Capital (under David Einhorn) worth $72 million, and that was a new position. With an activism flare, maybe this can light some fire under what has been a dead tech-value stock. Another firm, Highbridge Capital Management LLC, added more than 1 million shares as a new position in the first quarter.

DaVita Inc. (NYSE: DVA) was a key addition of Warren Buffett’s Ted Weschler who grew his stake to 6,000,000 from almost 2.7 million shares. This was a doubling of the stake, but we would note that this stock has slid 10% since the end of the quarter. The overall position may be closer to break-even here, but this has a huge portion of the kidney dialysis market as of today.

Dollar General Corporation (NYSE: DG) was a surprise for us considering that we thought Warren Buffett’s new manager Todd Coombs would have added to this position rather than cutting it. Maybe the valuation premium just became too much. The March 31 stake was 3.63 million shares versus the 4.497 million shares at the end of 2011.

El Paso Corporation (NYSE: EP) saw more than one move higher. Farallon Capital added another 50% or so to end with 22.49 million shares worth $235 million in the first quarter; Paulson & Co. doubled its stake in the first quarter to 8 million shares worth over $118 million.

Encana Corporation (NYSE: ECA) is a standout because it looks small, but it is a good whale watching stock. BP Capital’s T. Boone Pickens initiated a new position of more than 1.13 million shares worth some $22.3 million.

Express Scripts Holding Co. (NASDAQ: ESRX) was a very large gain by Farallon Capital, where the position rose to over 5.65 million shares as of March 31 from only 1.17 million shares at the end of 2011. Paulson & Co. also doubled its stake in the first quarter to 3.24 million shares worth over $87 million shares. With the merger now closed, others have been looking at this despite Walgreen’s issues.

General Motors Co. (NYSE: GM) was another new position of 10 million shares worth more than $250 million. Frankly, we might have guess that Ford would have been chosen. Is it possible that this was a “politically motivated or influenced” as Buffett is such a supporter of Obama? That admittedly seems like a stretch, but if we were looking for auto exposure it would have probably been with Ford.

SIRIUS XM Radio Inc. (NASDAQ: SIRI) saw SAC Capital grow from only over 3 million shares at the end of 2011 to 98.2 million shares worth almost $217 million in the first quarter, SAC wheels and deals in shares all the time, so they could have been in and out of a lot more or less shares before, during, and after that point.

Skyworks Solutions Inc. (NASDAQ: SWKS) scored a new large stake in the first quarter by Maverick Capital. The new holdings came to over 5.8 million shares worth some $161 million at the end of the quarter, likely as an “Apple play.”

United Continental Holdings (NYSE: UAL) was hard not to miss in the whale hunting as well as Appaloosa grew its position by 500% or so up to over 7.9 million shares worth over $146 million.

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JON C. OGG

The market has been concerned about the stewardship of Pepsi CEO Indra Nooyi for some time. Soda sales have dropped in many parts of the world, in part because of health concerns. That has caused Pepsi and rival Coca-Cola (NYSE: KO) to rely more on sales of bottled water, non-carbinated drinks, and snacks. Soda sales have been so huge for so long that replacing them is almost impossible.

PepsiCo is too large for almost any one shareholder to attack. Its market capitalization is over $100 billion, so the Relational Investors position is inconsequential, whether the group has reasonable concerns or not.

Douglas A. McIntyre

Also, keep in mind that portfolio managers Todd Combs and Ted Weschler are still new and those new positions of under $200 million $300 million are likely tied to them.

24/7 Wall St. has gone through line by line of each position to see which stocks have been bought and sold as new positions, as well as having added in whether or not the number of shares grew or shrank on each since the prior quarter. We had added some color in on some of the positions if applicable.

Be advised that the number of subsidiaries that this filing covers is 14 entities rather than 18 entities in the prior quarter. There is also a note in the 13F filing showing that the SEC has granted “Confidential Treatment” on some Berkshire stock holdings and that likely suggests that Buffett is still acquiring a position he does not want the public to know about yet. This filing does not signal the half-dozen or more European shares that Buffett said he bought so that remains an outstanding issue as well.

The value of the stock portfolio was $66,151,587,000 at the end of 2011 and this was listed as $75,300,250,000 at the end of March 2012.

American Express Co. (NYSE: AXP) was over 151.6 million shares, SAME AS last quarter.

Bank of New York Mellon Corp. (NYSE: BK) is now 5.6 million shares, HIGHER THAN the 1,793,915 shares last quarter.

CVS Caremark Corporation (NYSE: CVS) is the SAME SIZE at 7.106 million shares after having been a new holding in a recent quarter and having been raised one quarter ago.

Coca Cola Co. (NYSE: KO) was right at 200 million shares, SAME AS BEFORE.

ConocoPhillips (NYSE: COP) is roughly 29.1 million shares, roughly the SAME AS BEFORE but it is still lower than previous quarters in past reports.

Costco Wholesale (NASDAQ: COST) 4,333,363 Shares, SAME AS last quarter after having lowered it before.

Da Vita Inc. (NYSE: DVA) is now 6 million shares worth $541 million and that LARGER THAN BEFORE after having been a new position of 2.684 million shares.

DirecTV (NASDAQ: DTV) is a LARGER POSITION listed at 22.999 million worth over $1.13 billion. This one had been 20.348 million shares worth $870 million one quarter earlier and it had been a new position just two quarters ago at 4.249 million shares.

The S&P analyst noted:

The downgrade reflects mounting turmoil stemming from revelations that underscore shortcomings in Chesapeake’s corporate governance practices, covenant concerns, and the likelihood Chesapeake will face an even wider gap between its operating cash flow and planned capital expenditures than we had previously anticipated.

S&P calculates that Chesapeake’s negative free cash flow for the period 2012-2013 at over $16 billion. The company’s aggressive capital spending program is the culprit, but Chesapeake has no choice but to drill more and hope that natural gas prices rise. Otherwise the company’s leases could expire, leaving Chesapeake without anything of value to sell.

The potential value of Chesapeake’s assets is what apparently drew activist investor Carl Icahn back into the company’s shares yesterday. Icahn owned 5.8% of Chesapeake as recently as 2010, and made a nice profit without having to threaten Chesapeake with mayhem. This time may turn out differently.

The California Public Employees Retirement System (CalPERS) yesterday sent a letter to Chesapeake shareholders urging support for two proposals that will be considered at the company’s shareholder June 8th meeting. The first eliminates the company’s supermajority voting on bylaw and incorporation proposals, and the second seeks a direct shareholder nominating process for election to the company’s somnolent — and well-compensated — board of directors.

Shares in Chesapeake rose as high as $16.42 yesterday on the news about Icahn, but have fallen more than -4% this morning, to $14.88 in a 52-week range of $14.49-$35.75.

Paul Ausick

If you go all the way to page 14 under the “Transactions with Related Persons” section after the disclosure about the Oklahoma City Thunder that is where you find the goodies. This is the “Founder Well Participation Program” and it shows the sums that Aubrey McClendon got from the well participation program.  After that, it also shows that the Map Sale was rescinded.

In order to avoid any data confusion and in order to avoid any contextual issues, we have run this verbatim from the proxy materials.  The proxy noted, “The Board and Aubrey voluntarily renegotiated the terms of the FWPP to provide for early termination on June 30, 2014, 18 months before the previous termination date of December 31, 2015, pursuant to a letter agreement previously filed with the SEC. Aubrey will receive no compensation of any kind in connection with the early termination of the FWPP. Further, to address requests for more information, Aubrey voluntarily disclosed personal financial and operational information regarding his oil and gas investments through the FWPP.”

The company has reaffirmed that it plans to nominate an independent non-Executive Chairman.  Here are the full details of the WELL PARTICIPATION PLAN as follows:

The FWPP permits Mr. McClendon, the Company’s co-founder, to participate and invest as a working interest owner in new wells drilled by the Company. In 2005, the FWPP was documented as a formal plan containing substantially the same terms as prior agreements with the Company’s two co-founders that had been in place since the Company’s initial public offering in 1993. Shareholders approved the FWPP on June 10, 2005. The participation of co-founder Tom L. Ward terminated following his separation from the Company in 2006. The Company believes the FWPP fosters and promotes the development and execution of the Company’s business by aligning the interests of Mr. McClendon and the Company. Mr. McClendon has continually participated in the FWPP since the Company’s initial public offering in 1993, except during the five-quarter period from January 1, 1999 to March 31, 2000. The Board and Mr. McClendon recently renegotiated the terms of the FWPP to provide for the early termination of the FWPP on June 30, 2014, 18 months before the end of its current term on December 31, 2015, pursuant to a letter agreement previously filed with the SEC on the Company’s Form 8-K on May 2, 2012. Mr. McClendon will receive no compensation of any kind in connection with the early termination of the FWPP.

Under the FWPP, Mr. McClendon has the right to participate in either all or none of the wells spudded by or on behalf of the Company during each calendar year. Prior to the beginning of each year, Mr. McClendon must provide written notice to the members of the Compensation Committee of his election to participate in the FWPP and his proposed working interest percentage for that year. His working interest percentage may not exceed a 2.5% working interest in a well and is not effective for any well where the Company’s working interest after Mr. McClendon’s participation election would be reduced to below 12.5%. Subject to these limitations, if Mr. McClendon elects to participate in the FWPP, he must participate in all wells spudded by or on behalf of the Company during the given calendar year and cannot elect to participate on a well-by-well basis. In September 2011, Mr. McClendon elected to participate in the FWPP for the 2012 calendar year at the maximum 2.5% working interest permitted, the same participation percentage that Mr. McClendon has elected for the past nine years.

The move joins Warren Buffett and Berkshire Hathaway Inc. (NYSE: BRK-A) (NYSE: BRK-B) because the conglomerate owns a stake of 636,000 shares of its common stock.  That Berkshire stake is still way down from prior reports but was the same stake as of the end of 2011.

Peltz said in a SEC filing that shares are currently undervalued and the fund wants to communicate its view that things could be better if the company would look at various strategic alternatives including a restructuring of its key business segments.

Ingersoll-Rand is in the design, manufacturing, sales, and servicing of a diverse portfolio of industrial and commercial products in the United States and internationally.  Under the current Euro worries, it is worth noting that the company’s official headquarters is in Dublin, Ireland.

It is interesting that the reaction is so muted, but that may be because the DJIA is down another 100 points or so and with international markets on the skid again.  The reaction has Ingersoll-Rand shares up 1.4% at $42.83 against a 52-week range of $25.86 to $52.06.

JON C. OGG