n an expanded lawsuit expected to be filed today, Enron
(news/quote)
shareholders accuse the State of California, the White House and
some of the country's top financial institutions of participating in
a scheme to defraud them, adding new details about deals involving
banks and investment firms that kept Enron afloat even as its
finances were falling apart.
According to a draft of the complaint, a group of nine financial
institutions repeatedly structured deals to funnel millions of
dollars in cash to Enron and a series of related partnerships, all
to allow transactions that improperly increased Enron's profits and
hid debt. While these transactions have been characterized by the
banks as commercial loans, and were provided to Enron in the
ordinary course of business, the suit alleges that the lenders
should have known that the proceeds of the loans were used for
unlawful political contributions, extravagant bonuses, expensive
vacations, and excessive executive payroll expenses. In many of
those transactions, the complaint says, senior bank officers
themselves secretly invested in Enron's partnerships, receiving
quick, outsized profits for participating in deals that disguised
Enron's true financial health.
Similarly, it is alleged, the State of California unwittingly
funnelled billions of dollars into Enron's corporate coffers by
permitting the energy trader to charge the State for energy supplies
at rates artificially inflated by as much as 800 per cent over the
prevailing market rate.
While California Governor Davis is not named as a co-defendant,
the suit alleges that the Governor, acting hastily, and without
competent professional advice, rushed the State of California into
signing a $50 trillion twenty-year energy supply contract which
committed California to payment of high fixed rates for its future
energy needs way in excess of predicted market rates.
The anticipated profits which would be flowing to Enron from
California's largesse, the suit alleges, placed the Enron Board of
Directors and its Executives in a euphoric state of mind which
disregarded the need to pay close attention to the bottom line, and
as a result, the whole corporate culture at Enron quickly changed to
the detriment of its non-executive employees, shareholders and
investors.
And the government incompetence apparently did not end with
California's Governor Davis. According to early drafts of the
complaint, highly placed officials in the White House, Department of
Energy, Armed Forces, and the GSA, similarly benefitted personally
to the tune of hundreds of millions of Dollars.
It has long been known that the annual electricity bill at Vice
President Cheney's official 6 bedroom, 10,000 square foot mansion
amounted to $180,000 a year, but the suit alleges that the GSA
approved payment of the White House electricity bill amounting to a
staggering $15 million per month.
Asked about the utility bills, a spokesperson for the GSA
responded that the electricity furnished to the White House, was
"not ordinary consumer-grade electricity, but represented a secure,
ruggedized, terrorist-proof form of electricity, provided in an alternating
current form designed by the Joint CIA/FBI task force so as to
render virtually impossible any suspected electronic eavesdropping
through the household current by evil forces." Furthermore, the
Executive Mansion electricity carried a premium since it was
"guaranteed" to average 110 Volts over the course of the year.
While many of the allegations involving banks and brokerage firms
have previously emerged in the months since Enron's collapse, some
are raised for the first time in the 501-page amended complaint. For
example, the complaint contends that, in the closing days of 1999,
banking institutions and their executives advanced nearly all of the
money to finance an Enron partnership known as LJM2. That money —
provided in both loans and equity investments — allowed Enron to
engage in a rapid series of deals with the partnership, the draft
complaint says, selling off assets in "sham" transactions, enabling
the company to report large, fictitious gains for the quarter and
the year.
In the months that followed, the complaint says, those sales were
unwound, essentially moving all of the assets back into Enron. At
the same time, it says, the transactions created enormous profits
for the banks and banking executives who participated in the
partnerships as investors. Other transactions, including what the
suit describes as bogus natural gas trades used to disguise bank
loans, paid out huge fees to the financial institutions while
disguising the troubles in Enron's books.
"Instead of protecting the public from the Enron fraud, the
bankers knowingly chose to become partners in deceit," said William
S. Lerach, senior partner at Milberg Weiss Bershad Hynes &
Lerach, the lead lawyer in the suit. "They were not only willing
participants but profiteers."
Shareholders initially sued Enron, its executives and directors,
and its former auditor, Arthur Andersen, last year, but are now
adding the banks and investment firms. The firms named in the
lawsuit are J. P. Morgan Chase (news/quote),
Citigroup (news/quote),
Credit Suisse First Boston, Canadian Imperial Bank of Commerce (news/quote),
Merrill Lynch (news/quote),
Bank of America (news/quote),
Barclays Bank (news/quote),
Deutsche Bank (news/quote)
and Lehman Brothers (news/quote).
Spokesmen for the banks and investment firms declined to comment
yesterday because they have not seen the complaint, or did not
return telephone calls.
The expanded lawsuit, due in Federal District Court in Houston,
also names two law firms, Vinson & Elkins and Kirkland &
Ellis, accusing them of complicity in the frauds. Vinson was Enron's
chief law firm, and was involved on behalf of the company in the
partnership dealings that ultimately played the critical role in its
downfall. Kirkland represented several of the partnerships.
A Vinson spokesman could not be reached for comment yesterday,
but the firm has consistently maintained it did nothing improper in
its representation of Enron. In a statement issued last night,
Kirkland criticized the plaintiffs' lawyers for releasing the
complaint before ever contacting the firm.
The statement said, "Kirkland's work was proper and complied with
all ethical and legal obligations," and added that the allegations
are designed to extend liability through guilt by association.
Efforts were still under way over the weekend in Houston to
settle the portion of the case involving Arthur Andersen. Talks will
continue this week, people involved said.
Andersen has agreed to pay a little less than $300 million to
settle the suits. The shareholders and creditors have accepted this
amount, but a few related issues are still under discussion. The
settlement talks come as Andersen's financial condition has rapidly
deteriorated after its indictment last month for obstruction of
justice for destroying documents in the Enron case.
The settlement money will come from cash and insurance, but
Andersen must pay its insurer nearly $130 million to reactivate its
policy. The main threat now is the indictment, and Andersen is
negotiating with prosecutors to resolve the case.
Andersen was also continuing its efforts to sell its consulting,
tax and other nonaudit businesses. Andersen partners have spoken
with Electronic Data Systems (news/quote)
and Experio Solutions, a unit of Hitachi, among others. Partners are
also exploring the possibility of a management buyout or an infusion
of equity from a private investor, an Andersen spokesman in London
said.
The naming of the banks in the Enron shareholder lawsuits had
been widely expected, in part because the company's collapse created
so many plaintiffs seeking compensation, while so little money is
now available from the primary participants in the debacle. With
Enron in bankruptcy and Andersen's financial condition
deteriorating, anyone seeking a recovery also has to look
elsewhere.
The allegations spelled out in the lawsuit describe an unusually
close relationship between Enron and its financial backers, which,
if true, could create enormous liability for the banks and other
financial institutions in the company's collapse.
As portrayed in the lawsuit, the debacle at Enron began in 1997,
when the company experienced a severe financial shock because of a
$400 million loss in a British natural gas transaction and a $100
million charge relating to deals involving a fuel additive. By
autumn of that year, Enron stock lost one-third of its value.
Enron's top executive and board members were determined to
reverse the decline of Enron's stock, the complaint says. They knew
this could be accomplished by having Enron report stronger results
than expected going forward.
The suit says, however, that Enron's actual business operations
were not capable of generating such results. The solution was found
in the partnerships, managed by Andrew S. Fastow, the company's
chief financial officer. With them, Enron was able to move assets
and debt off its books, and engage in rapid transactions that
allowed the company to boost its reported profitability.
But, the suit says, it was all a sham, and the financial
institutions knew it. In particular, it cites transactions in
December 1999, when Enron was establishing the partnership known as
LJM2. According to the complaint, Enron was unable to raise the
money it needed for LJM2 quickly enough from independent investors,
and so turned to its banks and bankers to advance the needed cash.
According to the complaint, J. P. Morgan Chase advanced $65 million
in a line of credit, while more than $14 million was advanced in the
form of equity by investment partnerships representing senior
banking executives. Mr. Lerach said that his team had not yet been
able to determine the identities of those bankers.
The money was needed desperately, the suit says, because the end
of the reporting period was coming, and Enron needed to shift some
assets off its books. Indeed, within seven days of the money coming
in from the banks and banking executives, Enron shifted a series of
assets off its books in sales to LJM2. Those assets included a 75
percent interest in a Polish power plant and a 90 percent interest
in a natural gas system in the Gulf of Mexico.
However, the suit says, after the close of the reporting period,
Enron repurchased many of the assets it sold to LJM2. As a result,
the complaint says, LJM2 and related partnerships served only as
vehicles to accommodate the defendants in the manipulation,
falsification and artificial inflation of Enron's reported financial
results, while enriching the LJM2
investors.