Just four days before Enron disclosed a stunning $618 million loss for the third quarter—its first public disclosure of its financial woes—workers who audited the company’s books for Arthur Andersen, the big accounting firm, received an extraordinary instruction from one of the company’s lawyers. Congressional investigators tell Time that the Oct. 12 memo directed workers to destroy all audit material, except for the most basic “work papers.” And that’s what they did, over a period of several weeks. As a result, FBI investigators, congressional probers and workers suing the company for lost retirement savings will be denied thousands of e-mails and other electronic and paper files that could have helped illuminate the actions and motivations of Enron executives involved in what now is the biggest bankruptcy in U.S. history.
Supervisors at Arthur Andersen repeatedly reminded their employees of the document-destruction memo in the weeks leading up to the first Security and Exchange Commission subpoenas that were issued on Nov. 8. And the firm declines to rule out the possibility that some destruction continued even after that date. Its workers had destroyed “a significant but undetermined number” of documents related to Enron, the accounting firm acknowledged in a terse public statement last Thursday. But it did not reveal that the destruction orders came in the Oct. 12 memo. Sources close to Arthur Andersen confirm the basic contents of the memo, but spokesman David Tabolt said it would be “inappropriate” to discuss it until the company completes its own review of the explosive issue.
Though there are no firm rules on how long accounting firms must retain documents, most hold on to a wide range of them for several years. Any deliberate destruction of documents subject to subpoena is illegal. In Arthur Andersen’s dealings with the documents related to Enron, “the mind-set seemed to be, If not required to keep it, then get rid of it,” says Ken Johnson, spokesman for the House Energy and Commerce Committee, whose investigators first got wind of the Oct. 12 memo and which is pursuing one of half a dozen investigations of Enron. “Anyone who destroyed records out of stupidity should be fired,” said committee chairman Billy Tauzin, a Louisiana Republican. “Anyone who destroyed records to try to circumvent our investigation should be prosecuted.”
The accounting for a global trading company like Enron is mind-numbingly complex. But it’s crucial to learning how the company fell so far so fast, taking with it the jobs and pension savings of thousands of workers and inflicting losses on millions of individual investors. At the heart of Enron’s demise was the creation of partnerships with shell companies, many with names like Chewco and JEDI, inspired by Star Wars characters. These shell companies, run by Enron executives who profited richly from them, allowed Enron to keep hundreds of millions of dollars in debt off its books. But once stock analysts and financial journalists heard about these arrangements, investors began to lose confidence in the company’s finances. The results: a run on the stock, lowered credit ratings and insolvency.
Shredded evidence is only one of the issues that will get close scrutiny in the Enron case. The U.S. Justice Department announced last week that it was creating a task force, staffed with experts on complex financial crimes, to pursue a full criminal investigation. But the country was quickly reminded of the pervasive reach of Enron and its executives—the biggest contributors to the Presidential campaign of George W. Bush—when U.S. Attorney General John Ashcroft had to recuse himself from the probe because he had received $57,499 in campaign cash from Enron for his failed 2000 Senate re-election bid in Missouri. Then the entire office of the U.S. Attorney in Houston recused itself because too many of its prosecutors had personal ties to Enron executives—or to angry workers who have been fired or have seen their life savings disappear.
Texas attorney general John Cornyn, who launched an investigation in December into 401 losses at Enron and possible tax liabilities owed to Texas, recused himself because since 1997 he has accepted $158,000 in campaign contributions from the company. “I know some of the Enron execs, and there has been contact, but there was no warning,” he says of the collapse.
Bush told reporters that he had not talked with Enron CEO Kenneth L. Lay about the company’s woes. But the White House later acknowledged that Lay, a longtime friend of Bush’s, had lobbied Commerce Secretary Don Evans and Treasury Secretary Paul O’Neill. Lay called O’Neill to inform him of Enron’s shaky finances and to warn that because of the company’s key role in energy markets, its collapse could send tremors through the whole economy. Lay compared Enron to Long-Term Capital Management, a big hedge fund whose near collapse in 1998 required a bailout organized by the Federal Reserve Board. He asked Evans whether the Administration might do something to help Enron maintain its credit rating. Both men declined
to help.
An O’Neill deputy, Peter Fisher, got similar calls from Enron’s president and from Robert Rubin, the former Treasury Secretary who now serves as a top executive at Citigroup, which had at least $800 million in exposure to Enron through loans and insurance policies. Fisher—who had helped organize the LTCM bailout—judged that Enron’s slide didn’t pose the same dangers to the financial system and advised O’Neill against any bailout or intervention with lenders or credit-rating agencies.
On the evidence to date, the Bush Administration would seem to have admirably rebuffed pleas for favors from its most generous business supporter. But it didn’t tell that story very effectively—encouraging speculation that it has something to hide. Democrats in Congress, frustrated by Bush’s soaring popularity and their own inability to move pet legislation through Congress, smelled a chance to link Bush and his party to the richest tale of greed, self-dealing and political access since junk-bond king Michael Milken was jailed in 1991. That’s just what the President, hoping to convert momentum from his war on terrorism to the war on recession, desperately wants to avoid. The fallout will swing on the following key questions:
Was a crime committed?
The justice investigation will be overseen in Washington by a seasoned hand, Josh Hochberg, head of the fraud section and the first to listen to the FBI tape of Linda Tripp and Monica Lewinsky in the days leading to the case against President Clinton. The probe will address a wide range of questions: Were Enron’s partnerships with shell corporations designed to hide its liabilities and mislead investors? Was evidence intentionally or negligently destroyed? Did Enron executives’ political contributions and the access that the contributions won them result in any special favors? Did Enron executives know the company was sinking as they sold $1.1 billion in stock while encouraging employees and other investors to keep buying?
“It’s not hard to come up with a scenario for indictment here,” says John Coffee, professor of corporate law at
Columbia University. “Enough of the facts are already known to know that there is a high prospect of securities-fraud charges against both Enron and some of its officers.” He adds that “once you’ve set up a task force this large, involving attorneys from Washington, New York and probably California, history shows the likelihood is they will find something indictable.”
Enron has already acknowledged that it overstated its income for more than four years. The question is whether this was the result of negligence or an intent to defraud. Securities fraud requires a willful intent to deceive. It doesn’t look good, Coffee says, that key Enron executives were selling stock shortly before the company announced a restatement of earnings.
As for Arthur Andersen, criminal charges could result if it can be shown that its executives ordered the destruction of documents while being aware of the existence of a subpoena for them. A likely ploy will be for prosecutors to target the auditors, hoping to turn them into witnesses against Enron. Says Coffee: “If the auditors can offer testimony, that would be the most damaging testimony imaginable.”
What about other probes?
Enron is in the cross hairs of at least six congressional panels. In the Senate, the Permanent Investigative Subcommittee got a jump on Jan. 11 by subpoenaing documents of 49 Enron executives and, separately, the corporate records of Enron and Arthur Andersen. The subpoenas, covering the period from 1999 through 2001, are aimed at learning “what the officers knew and what they did about it,” said a committee official. The first hearing this year is scheduled for Jan. 24, headed by Connecticut Democrat Joe Lieberman. The first appearance of Enron chairman Lay is scheduled for Feb. 4 before the Senate Commerce Committee.
There are now 47 class actions against Enron and its executives and directors, filed either by shareholders or employees and carrying mainly the possible penalty of heavy fines. Most allege that Enron failed to disclose its many risky partnerships, which proved to be a large part of its undoing. Though Enron is bankrupt, Arthur Andersen could be liable as well, and Enron’s officers and directors have deep pockets. Plaintiffs are seeking to freeze the proceeds of Enron stock sales by those insiders. “Going after directors personally is rare. But this case calls for the unusual,” says Jim Newman, executive director of Securities Class Action Services, which monitors such cases.
Were favors received?
At the White House last week junior aides were asking Washington veterans whether they will have to hire lawyers because they attended meetings in which Enron issues were discussed. Answer: probably not—but the question shows the level of concern. Though there has been no evidence of anything illegal, Enron enjoyed considerable influence from the start of the Bush Administration. Curtis Hebert Jr., the former chairman of the Federal Energy Regulatory Commission, told the New York Times that Lay offered to support Hebert’s continuing in that role if Hebert would take a friendlier view toward energy deregulation. Hebert declined, and the Bush Administration replaced him. Lay and other Enron officials met six times with officials led by Vice President Dick Cheney to craft a new energy policy. That policy, not surprisingly, was friendly to Enron and other energy companies.
Bush says he first learned last Thursday that Lay had approached his Cabinet secretaries for help. Press secretary Ari Fleischer told Bush he should expect to be asked about any contacts that he had with Lay. Fleischer had researched the matter, and he “refreshed” the President’s memory about the last time he met with Lay: in spring 2001, in Houston, at an event hosted by Bush’s mother. O’Neill was present at the Thursday discussion and said, “Oh, by the way, you need to know that I had a conversation with Ken Lay. He called me.” O’Neill described the call as a “heads up” about Enron’s financial woes and the potential effects they might have on the larger economy. Bush nodded. Then Evans, also present, chimed in. “I got a call from Ken too,” said the Commerce Secretary, who is Bush’s closest friend. “He was asking me to help, but I didn’t.”
While Bush and the Republicans have gained the lion’s share of attention from Enron and Lay, they get at least a little cover from the company’s campaign contributions to prominent Democrats, such as Senate Energy Committee Chairman Jeff Bingaman and Louisiana Senator John Breaux. Enron and its top officials have hired the well-known Democratic lawyers Robert Bennett and David Boies. And Bob Rubin, the Democrats’ high priest of economics and finance, was caught fishing—albeit tentatively by all accounts—for Treasury intervention on Enron’s behalf.
Who will audit the auditors?
Mark Cheffers, CEO of accounting Malpractice.com, says of Arthur Andersen: “Even if they’re innocent, it looks like a massive cover-up.” Andersen reported its destruction of Enron documents to the SEC and Justice Department early last week—just before four congressional investigators arrived at the company’s Houston office on Wednesday. Committee officials immediately demanded the personal records of the partner and five top executives working on the Enron account.
The incident further tars the name of venerable Arthur Andersen, which in June settled allegations of fraud stemming from its audit of Houston-based Waste Management and paid a $7 million fine without admitting any wrongdoing. Last year, again without admitting wrongdoing, Andersen agreed to pay $110 million to settle a class action brought on behalf of shareholders of another client, Sunbeam, which had misstated its financial results during the 1990s. These days, an Andersen competitor observes sardonically, settling a fraud case appears to be good for attracting business from other firms that want a soft touch for an auditor.
With the SEC, the Justice Department and various congressional committees now scrutinizing Andersen’s audit work on Enron, there is little doubt efforts will be made to rein in the industry. “The profession has always done just enough to get out of a hole,” says industry analyst Arthur Bowman. The SEC and Congress are looking into Andersen’s interpretation of accounting rules that allowed Enron to exclude losses at several partnerships from its balance sheets. But the larger issue will be the objectivity of the entire industry. Enron paid Andersen $25 million for its audit last year and $27 million for “consulting” and other services. “How can any auditor be independent when his client is paying this kind of money?” Bowman asks.
Two of Enron’s senior financial executives had previously worked for Andersen in Houston: Richard Causey, Enron’s chief accounting officer, and Jeffrey McMahon, chief financial officer. Although it’s not unusual for auditors to be subsequently hired by their clients, Andersen has an unusual history—in Waste Management’s case, supplying every CFO from 1971 to 1997.
Can 401s be protected?
There has been some movement in congress for reform, spurred by the plight of Enron workers who had, on average, 62% of their 401 savings tied up in Enron stock. Those savings were largely wiped out because the plan offered little opportunity to diversify. Like many corporate plans, Enron’s didn’t allow participants to transfer stock that had been given to them as part of a matching contribution until age 50. And Enron officials actively encouraged workers to buy Enron stock. In a memo in August, Lay told employees he’d “never felt better about the prospects of the company. Our growth has never been more certain.” Enron workers were further hamstrung by Enron’s switching of plan administrators and freezing of all asset shifting within 401 accounts for at least 10 days, just as Enron stock was taking its dive. The result was ruin, as Enron sank from $90 to under $1.
Democratic Senators Barbara Boxer of California and Jon Corzine of New Jersey have proposed that plan assets be limited to no more than 20% of any one stock. Their bill would also reduce tax breaks for companies that make matching contributions with stock and would free employees to sell matching stock after 90 days. Senator Bingaman wants to allow companies to offer financial advice without being liable for investment losses, as they currently are.
Says David Certner, chief lobbyist for the American Association for Retired Persons: “In 401 plans, we are asking people to take the risk and responsibility for investing, yet we set up this system where we are violating the first basic rule of investing: diversification.” Where company stock is a savings option, employees invest almost a third of their assets in it.
Behind all the front-page headlines last week, Enron was struggling to manage its bankruptcy reorganization. One key all along has been to keep the vaunted energy-trading unit operating. That group accounted for 90% of Enron’s revenue, and Friday it was sold at auction to UBS Warburg for a price to be disclosed this week. The courts must approve the sale, however, which promises to spark legal fireworks from creditors, who will want to make sure the company got a fair price. Not that it will matter much to Enron. The company has little chance of emerging from Chapter 11 intact. Says Peter Chapman, president of Bankruptcy Creditors’ Service: “Assets are being liquidated for the benefit of creditors.” But even if the company disappears, the name Enron will be with us for a while.
—With reporting by Michael Weisskopf, Adam Zagorin and James Carney/Washington; Cathy Booth Thomas/Dallas; and Bernard Baumohl, Unmesh Kher, Desa Philadelphia and Julie Rawe/New York
