November 21, 2024

DealBook: Lawyers for Enron’s Skilling Are Trying to Reduce His 24-Year Prison Sentence

Jeffrey K. Skilling was convicted on fraud charges in 2006.Michael Stravato for The New York TimesJeffrey K. Skilling was convicted on fraud charges in 2006.

Jeffrey K. Skilling, the former Enron chief executive serving a 24-year sentence for his role in the fraud that led to the energy giant’s collapse, could be released early from prison under a possible agreement with the government, according to a notice posted late Wednesday on the Justice Department’s Web site.

Lawyers for Mr. Skilling are in talks with prosecutors to reduce the term he was sentenced to for his role in helping to bring down Enron, which before its collapse in 2001 was the world’s largest energy trader and one of America’s most heralded companies.

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Since his 2006 conviction on fraud and conspiracy charges, Mr. Skilling and his team of lawyers, led by Daniel M. Petrocelli, have waged an aggressive appeal, repeatedly seeking to overturn his conviction on various legal grounds.

Last year, lawyers for Mr. Skilling said that he would seek a new trial based on recently discovered evidence. And a federal appeals court in New Orleans had previously ruled that Mr. Skilling’s sentence should be recalculated because the trial court judge erred in his interpretation of the sentencing guidelines.

The notice of Mr. Skilling’s potential deal with prosecutors was posted to notify victims of Mr. Skilling’s crimes — thousands of former Enron employees and shareholders — of any changes related to his sentence. Victims, who are due restitution of about $50 million, have two weeks to voice objections to a possible new sentence.

“The Department of Justice is considering entering into a sentencing agreement with the defendant in this matter,” reads the notice.

If the government decides to shorten Mr. Skilling’s sentence, it is unclear by how much it would be reduced. Any reduction would also require the approval of Judge Simeon T. Lake III of Federal District Court in Houston, who presided over Mr. Skilling’s trial. (Kenneth Lay, the company’s chairman, was also found guilty but died just over a month after the trial.)

Mr. Skilling and Mr. Lay became public symbols of executive wrongdoing and financial malfeasance after the tech and telecom boom of the late 1990s turned to bust. Enron was at the center of a wave of corporate accounting scandals that emerged after the end of the late 1990s stock market boom. The executives, along with other prominent businessmen like Bernard J. Ebbers of WorldCom and John J. Rigas of Adelphia, were convicted by juries and received lengthy prison terms for lying to investors, employees and government regulators about the health of their companies.

The collapses of Enron and WorldCom punctuated the end of the bull market. President Bush took an aggressive stance on prosecuting white-collar crime, creating a Corporate Fraud Task Force that secured nearly 1,300 corporate fraud convictions, including cases against more than 200 chief executives, company presidents and chief financial officers, according to a 2008 report. Congress passed the Sarbanes-Oxley accounting reform laws.

The Justice Department also formed the Enron Task Force to prosecute crimes specifically connected to the energy company’s bankruptcy, and charged about 30 people connected to the company. Several former Enron executives cooperated with the government and testified at Mr. Lay’s and Mr. Skilling’s trial.

Mr. Skilling’s appeal gained traction with his argument that the government had relied on a dubious legal theory that Mr. Skilling deprived others of his “honest service.” In 2010, the Supreme Court called the use of the awkwardly written “honest services” law unconstitutionally vague and said his conviction was “flawed.”

But a federal appeals court subsequently ruled that the conviction was not tainted by the use of the theory and said there was “overwhelming evidence” that Mr. Skilling had conspired to commit fraud. Last year, the Supreme Court declined to hear Mr. Skilling’s appeal of the appeals court ruling.

But the federal appeals court also reiterated the earlier ruling that Mr. Skilling still needed to have his sentence recalculated. The resentencing was postponed while the broader appeal wended its way through the courts.

Mr. Skilling began serving his sentence at a federal prison in Waseca, Minn., but was moved to another facility in Littleton, Colo., after the Minnesota penitentiary was converted to a women’s prison.

At the time of Mr. Skilling’s sentence, Sean Berkowitz, the director of the Enron Task Force, said the lengthy prison term was appropriate and should serve as a deterrent to corporate fraud.

“‘The Enron fraud is as large and serious as any other fraud in this nation’s history,” he said, adding that because Mr. Skilling “sat at the top and set the culture of what happened at Enron — he should bear the brunt of the responsibility.”

A version of this article appeared in print on 04/05/2013, on page B4 of the NewYork edition with the headline: Lawyers for Enron’s Skilling Are Trying to Reduce His 24-Year Prison Sentence.

Article source: http://dealbook.nytimes.com/2013/04/04/enrons-skilling-could-get-early-prison-release/?partner=rss&emc=rss

Today’s Economist: Simon Johnson: Changing the Conventional Wisdom on Wall Street

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Simon Johnson is the Ronald A. Kurtz Professor of Entrepreneurship at the M.I.T. Sloan School of Management and co-author of “White House Burning: The Founding Fathers, Our National Debt, and Why It Matters to You.”

There are two fundamentally different views regarding modern Wall Street. The first is that the financial sector has been terribly and unjustly put upon in recent years – regulated into the ground and treated with repeated disrespect, including by the White House.

Today’s Economist

Perspectives from expert contributors.

There was, for example, an impressive amount of whining this week when no one from a big bank was invited to a high-profile meeting with the president on fiscal issues. As the people holding strongly to this view run large financial institutions and have effective public relations teams, this has become an important part of the conventional or establishment wisdom, repeated without question in some parts of the media.

The second view is that the powerful people who run global megabanks have lost all sense of perspective, including failing to realize that they have more access to people at the top of our political power structures than any other sector has ever had. Anyone who doubts this view, or wonders exactly how the revolving door among politics, lobbying and banking works, should read Jeff Connaughton’s account, “The Payoff: Why Wall Street Always Wins” (which I have written about in more detail before). Mr. Connaughton is most gripping when he describes the failure of law enforcement around securities issues, including issues with both the Department of Justice and the Securities and Exchange Commission.

Which of these views is correct? We will soon know, because there is a simple and direct test that is fast approaching: Whom will President Obama nominate as the new chair of the S.E.C.? (Mary Schapiro, the current chairwoman, is widely reported to be stepping down soon.)

There are only two possible outcomes.

The president could pick someone who is very close to the securities industry — for example, a senior financial services executive or one of the industry’s favorite lawyers or someone who already works in its “self-regulatory” apparatus. Any former politician who has taken large donations from Wall Street or an academic who sits on the board of a large financial company would also fit into this category. There is no shortage of candidates from this side of the contest.

Alternatively, the president could choose someone who is not only willing to enforce the law and regulation but who would actively seek to change the conventional wisdom around finance. For example, all too often we hear – including from some top officials – that if we relax the capital requirements, the economy will grow faster in a sustainable manner.

This is a very dangerous idea that completely ignores that Europe went much farther than we did in reducing bank capital in the run-up to 2008 (i.e., allowing banks to finance themselves with more debt and less equity) and that this directly contributed to the complete disaster they now face. Thank goodness that Sheila Bair, then head of the Federal Deposit Insurance Corporation, and a few others, successfully resisted attempts to lower bank capital in a parallel manner in the United States. (If you want more detail on these points, look at Ms. Bair’s new book, “Bull by the Horns,” or the coming book by Anat Admati and Martin Hellwig, “The Bankers’ New Clothes: What’s Wrong With Banking and What to Do About It.”)

Without doubt, part of the problem that led to the crisis of 2008 was weak regulation. But at times when conventional wisdom affirms some form of “new economy” in which asset prices can only go up – and therefore financial institutions should be allowed to borrow a great deal more relative to their shareholder equity — can any regulation be effective?

To make Wall Street safer – and more helpful to the rest of the economy – implementing new rules is not enough. We need completely new thinking about securities markets, including all dimensions of how investors are treated and where financial-system risks lurk. We must be able to trust the financial system again, and we are a long way from this point.

There are three potential S.E.C. chairmen who could have this kind of impact. If you have other names, see if they match these three in terms of integrity, willingness to go against the consensus and ability to get things done.

First, former Senator Ted Kaufman of Delaware has been a consistent advocate for financial-sector reform and was one of the clearest voices during the 2010 legislative process that led to Dodd-Frank. His advice was ignored then; in fact he was opposed directly by Treasury and the White House (see Mr. Connaughton’s book for details). It is not too late for the president to change his mind. (See the longer piece I did a few days ago on Senator Kaufman for this Boston Globe feature.)

Second, Neil Barofsky is the former special inspector general in charge of oversight for the Troubled Asset Relief Program. A career prosecutor, Mr. Barofsky tangled with the Treasury officials in charge of handing out support for big banks while failing to hold the same banks accountable — for example, in their treatment of homeowners. He confronted these powerful interests and their political allies repeatedly and on all the relevant details – both behind closed doors and in his compelling account, published this summer: “Bailout: An Inside Account of How Washington Abandoned Main Street While Rescuing Wall Street.”

His book describes in detail a frustration with the timidity and lack of sophistication in law enforcement’s approach to complex frauds. He could instantly remedy that if appointed — Mr. Barofsky is more than capable of standing up to Wall Street in an appropriate manner. He has enjoyed strong bipartisan support in the past and could be confirmed by the Senate (just as he was previously confirmed to his TARP position).

Third, Dennis Kelleher is a former senior Senate leadership aide with a great deal of political experience, including during the financial crisis and in the negotiations that led to Dodd-Frank, and now runs the pro-reform group Better Markets. Previously, he was a partner at the international law firm of Skadden, Arps, Slate, Meagher Flom, where he specialized in the S.E.C., securities, financial markets and corporate conduct in the United States and Europe. No one has been a more effective advocate of implementing substantive reforms.

Mr. Kelleher and his team are in the trenches every day, arguing on behalf of taxpayers and ordinary citizens at every opportunity before the entire range of regulators, in court cases and with Congress and the administration. They are also amazingly effective – particularly considering the huge resources of the firms that they go up against (for some examples, see this New York Times profile of Mr. Kelleher). His private and public sector experience and expertise are very highly regarded throughout the financial regulatory agencies and in the legislative and executive branches more broadly. He also has strong relationships on both sides of the aisle and would be likely to be confirmed.

At the start of this second presidential term, many people are optimistic that President Obama will finally push hard for meaningful change around Wall Street, including at the S.E.C.

Goldman Sachs, JPMorgan Chase and Citigroup were all big donors to the Obama campaign in 2008 (see this recent column by William D. Cohan), but they did not make the top 10 list this year. Now would be a perfect time for the president to clean up Wall Street with a strong S.E.C. that is focused on enforcing the law and overturning dangerous parts of the conventional wisdom.

Article source: http://economix.blogs.nytimes.com/2012/11/15/changing-the-conventional-wisdom-on-wall-street/?partner=rss&emc=rss

Media Decoder Blog: Judge Backs E-Book Settlement, Setting Stage for Price War

Judge Denise Cote in 2005.Fred R. Conrad/The New York TimesJudge Denise Cote, in 2005.

4:01 p.m. | Updated A federal judge on Thursday approved a settlement with three major publishers in a civil antitrust case brought by the Department of Justice over collusion in e-book pricing, paving the way for a war over the cost of digital books in the coming months.

Denise L. Cote, the federal judge in Manhattan who is overseeing the case, rejected arguments against the settlement, saying they were “insufficient” to deny its approval.

In April, the government announced that it had filed a lawsuit against five publishers and Apple, accusing them of conspiring to raise the price of e-books.

Three publishers — Hachette Book Group, Simon Schuster and HarperCollins – agreed to settle with the government, while Penguin Group USA, Macmillan and Apple declined to settle. They face a trial next summer.

The settlement approved on Thursday called for the publishers to end their contracts with Apple within one week. The publishers must also terminate contracts with e-book retailers that contain restrictions on the retailer’s ability to set the price of an e-book or contain a so-called “most favored nation” clause, which says that no other retailer is allowed to sell e-books for a lower price.

For the next two years, the settling publishers may not agree to contracts with e-book retailers that restrict the retailer’s “discretion over e-book pricing,” the court said. For five years, the publishers are not allowed to make contracts with retailers that includes a most favored nation clause.

“The Government reasonably describes these time-limited provisions as providing a “cooling- off period” for the e-books industry that will allow it to return to a competitive state free from the impact of defendants’ collusive behavior,” the court said in a filing on Thursday. “The time limits on these provisions suggest that they will not unduly dictate the ultimate contours of competition within the e-books industry as it develops over time.”

Amazon, which in April called the settlement “a big win for Kindle owners,” has vowed to drop prices on its e-books, probably to the $9.99 point that it once preferred for most bestsellers and newly released e-books.

Other retailers, like Barnes Noble, could feel pressure to respond. Barnes Noble has spent heavily in the last several years to build its digital business in an effort to catch up to Amazon. While it has captured at least 25 percent of the e-book market, it does not have Amazon’s deep pockets and may have trouble matching discounts that Amazon can offer.

It was exactly the prospect of lower prices for consumers that the government cited when it filed suit. But publishers and retailers who are critical of the deal say it would have the unintended effect of allowing Amazon to gain a monopoly by offering lower prices than everyone else.

Gina Talamona, a spokeswoman for the Department of Justice, said in a statement: “The department is pleased the court found the proposed settlement to be in the public interest and that consumers will start to benefit from the restored competition in this important industry.”

An Amazon spokesperson declined to comment on the ruling.

The approval of the settlement had been widely expected. During a 60-day public comment period that ended June 25, the court received 868 public comments responding to the settlement, including objections from the American Booksellers Association, the Authors Guild and Barnes Noble.

Bob Kohn, the chairman and chief executive of RoyaltyShare and an outspoken opponent of the settlement, said he was “very disappointed” that the court made a decision without a formal public hearing.

“It appears that the district court completely deferred to the D.O.J., whose analysis of the case was faulty and insufficient,” he said. “I am hopeful that the U.S. Court of Appeals will closely review the important public issues in this case.”

Spokeswomen for HarperCollins and Hachette Book Group declined comment. Simon Schuster did not immediately return a request for comment.

Article source: http://mediadecoder.blogs.nytimes.com/2012/09/06/judge-approves-e-book-pricing-settlement-between-government-and-publishers/?partner=rss&emc=rss

Bits Blog: Google Reaches $500 Million Settlement With Government

12:48 p.m. | Updated to include official announcement.

The government announced Wednesday that Google will pay $500 million to settle government charges that it has shown illegal ads for online Canadian pharmacies in the United States.

The fine, which the Justice Department said is one of the largest such penalties ever, covers revenue that Google earned from the illegal advertisers and revenue that the Canadian pharmacies received from United States customers.

As part of the settlement, Google acknowledged that it improperly aided Canadian pharmacies that operate illegally by failing to require a prescription or selling counterfeit drugs in advertising through its AdWords program.

Since 2010, after Google became aware of the investigation, it has required that all Canadian online pharmacy advertisers be certified by the Canadian International Pharmacy Association and they can only advertise to Canadian customers. United States pharmacy advertisers must be certified by the National Association of Boards of Pharmacy.

The investigation was first revealed in May, when Google said in a government filing that it set aside $500 million for the potential settlement of a Department of Justice investigation into its advertising practices. The move decreased its quarterly profit by 22 percent.

Google has said in the past that regulating these pharmacies on its site is a cat-and-mouse game, because when it introduces rules to prevent them from advertising, they find new ways to appear on Google.

Web sites are liable for ads on their sites from advertisers that break federal criminal law.

“We banned the advertising of prescription drugs in the U.S. by Canadian pharmacies some time ago,” Google said in a statement Wednesday. “However, it’s obvious with hindsight that we shouldn’t have allowed these ads on Google in the first place. Given the extensive coverage this settlement has already received, we won’t be commenting further.”

In a statement issued by the Justice Department, James M. Cole, a deputy attorney general, said: “The Department of Justice will continue to hold accountable companies who in their bid for profits violate federal law and put at risk the health and safety of American consumers. This settlement ensures that Google will reform its improper advertising practices with regard to these pharmacies.”

The investigation was led by officials from the United States attorney’s office for the District of Rhode Island and the Food and Drug Administration’s Office of Criminal Investigations.

Article source: http://feeds.nytimes.com/click.phdo?i=b37ac02753711bf603a388b8c4b483c5

Common Sense: Bribery, but Nobody Was Charged

The women happened to be the wives of two veterinarians stationed at the plants as part of Mexico’s effort to meet high sanitary and processing standards. The veterinarians certified products as suitable for export, a step required by countries like Japan and increasingly sought after by Mexican consumers as an assurance of quality and safety for locally produced processed meats.

A few days later, senior Tyson executives convened a meeting at headquarters. Someone pointed out the obvious. The purpose of the payments was “to keep the veterinarians from making problems,” according to a subsequent memo — in short, bribes. Participants at this meeting — who included the president of Tyson International, the vice president for operations, and the vice president for internal audit — evidently agreed the payments to the wives had to stop. A company lawyer said he was seeking advice on “possible exposure” from the payments, evidently referring to potential liability for maintaining fraudulent records and bribing foreign officials, which are felonies under the Foreign Corrupt Practices Act.

And then, having identified the serious ethical and legal lapses, and the need to stop the bogus payments, this group of executives “were tasked with investigating how to shift the payroll payments to the veterinarians’ wives directly to the veterinarians,” according to a subsequent statement of facts negotiated by Tyson’s lawyers and the Department of Justice.

Written in the passive voice typical of such documents, the statement raises the question of who “tasked” such an undertaking.

A subsequent memo written by Tyson’s audit department concluded that the “doctors will submit one invoice which will include the special payments formally [sic] being made to their spouses along with there [sic] normal consulting services fee.” The invoices would be identified as “professional honoraria.”

What were these Tyson officials thinking? It’s hard to see how simply shifting the payments did anything to mitigate the bribery scheme or the false descriptions of the payments. If anything, it seems even more brazen. There’s no indication anyone gave serious consideration to stopping the payments — only to finding a new way to make them. The president of Tyson International, the highest-ranking official at the meeting, communicated this “resolution” to Tyson’s chief administrative officer by e-mail on July 14, further pushing the issue up the chain of command.

The payments continued. When another Mexican plant manager complained to an accountant at headquarters that he was “uncomfortable” with this, the accountant spoke to the president of international — who again tried to squelch the issue. “He agreed that we are O.K. to continue to make these payments against invoices (not through payroll)” until we are able to get [the Mexican inspection program] to change, the accountant informed the plant manager.

The issue of the payments resurfaced in November 2006, and this time, Tyson did what it should have done two years earlier: it retained an outside law firm, Kirkland Ellis, conducted an internal investigation and, under a government program intended to encourage voluntary disclosure of white-collar crime, turned the results over to the Justice Department and the Securities and Exchange Commission. The government’s investigation ended this February, when Tyson was charged with conspiracy and violating the Foreign Corrupt Practices Act. Tyson agreed to resolve the charges with a deferred prosecution agreement in which it “admits, accepts and acknowledges” the government’s statement of facts, and paid a $4 million criminal penalty. The company paid an additional $1.2 million and settled related S.E.C. charges that it maintained false books and records and lacked the controls to prevent payments to phantom employees and government officials.

But what about those at Tyson responsible for the bribery scheme?

Corporations may have assets and liabilities, but they don’t commit crimes — their officers, executives and employees do. And the 23-page letter agreement between Tyson and the Department of Justice, the criminal information, and the S.E.C.’s public statement of facts all withheld names, identifying the participants only as “senior executive,” “VP International,” “VP Audit” and so on.

This is James B. Stewart’s first Common Sense column for Business Day, where it will appear on Saturdays. Trained as a lawyer, Mr. Stewart is the author of “Den of Thieves,” “Disneywar” and “Tangled Webs: How False Statements Are Undermining America.” He shared a Pulitzer Prize for explanatory reporting in 1988.

Article source: http://feeds.nytimes.com/click.phdo?i=1599d7053e8a3877d2f6821db2e90af1