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July - Duke Energy Employee Advocate

Deregulation - Page 10 - 2002

"You know what the difference is between the state of California and the Titanic?
At least when the Titanic went down, the lights were on" - Jeff Skilling, Enron CEO

Enron Death Spiral

New York Times – by K. Eichenwald, D. Henriques – February 11, 2002

HOUSTON, Feb. 9 — Kenneth L. Lay strode onto a ballroom stage at the Hyatt Regency Hill Country Resort in San Antonio, walking between two giant screens that displayed his projected image. Before him, bright light from the ballroom's chandeliers spilled across scores of round tables where executives from the Enron Corporation waited to hear the words of Mr. Lay, their longtime chairman and chief executive.

This meeting of hundreds of Enron executives in the first week of January 2001 was a time of revelry, a chance to celebrate a year when business seemed good — even better than good. At night, according to executives who attended, Champagne and liquor flowed from the open bar, while fistfuls of free cigars were available for the taking. Executives could belly up to temporary gambling tables for high-stakes games of poker. Others found their excitement in the company- sponsored car race; one executive had even hired a truck to transport his three Ferraris from Houston for the event.

Now, as waiters wearing bolo ties scurried about, the executives listened eagerly to Mr. Lay's descriptions of Enron's recent year of success, and the new successes that were within reach. Already, Enron was near the top of the Fortune 500, a multibillion- dollar behemoth that had moved beyond its roots in the natural gas business to blaze new trails in Internet commerce. For 2001, Mr. Lay said, the company would take on a new mission, one that would define everything it did in the months to come: Enron would become "the world's greatest company." The words replaced his image on one of the screens.

But it was not to be. For, unknown to almost everyone there, Enron was secretly falling apart. Even as the celebrations unfolded, accountants and trading experts at the company's Houston headquarters were desperately working to contain a financial disaster, one that threatened — and ultimately would destroy — everything Enron had become. A handful of executives were struggling to sound the alarm, but with Enron's confidence in its destiny, the warnings went unheeded.

"We were so sure of what we were doing and where we were going," one executive who attended the San Antonio meeting said. "We didn't know we were living on borrowed time."

Investigators picking through the wreckage of Enron, seeking to understand what caused its collapse in December, have explored its byzantine partnerships and financial strategies. From these details, a clearer picture has begun to emerge about what happened inside the thick walls of Enron during its last 11 months. It is two completely different tales — the public image, polished by its most senior officers, of an innovative powerhouse on the verge of reshaping the world, and the hidden truth of a company plagued by secrets, whose executives were struggling to hold it together. It was like a gleaming ocean liner seemingly powering forward, its passengers dining in luxury, while, below the waterline, its sweaty crew frantically bails against the force of an in-rushing sea.

By the final days, the sea had won. Attempts by Enron executives to seek a rescue from their powerful friends in Washington and last-ditch efforts to save the company through a merger had ended in failure. When the company finally sought bankruptcy protection, it marked the biggest, fastest corporate collapse in American history.

Details of Enron's last year were pieced together from internal records of the company and its auditor, audio and video tapes, court documents, partnership records, Congressional testimony and information from a report by a special committee of the company's board and from interviews with current and former executives, government officials and lawyers involved in the case.

With the speed in which they traveled from confidence to collapse, executives who once thought they could see their futures clearly and who believed in their employer have found their faith fundamentally shaken. "Given the events at Enron, given the short time period in which it happened, given the economic disaster, it fundamentally challenges everything I think about the way companies work," said Allan Sommer, former vice president for corporate systems at Enron. "If Enron was able to hide this the way they did, why couldn't other companies do it, too?"

Riding High
Power on Parade at Bush Inauguration

As a chilly rain soaked the streets of Washington on Jan. 20, 2001, the motorcade of President George W. Bush moved past the reviewing stand, near where he had just taken the oath of office. As the new president headed toward Pennsylvania Avenue, the cheers of supporters mixed gamely with the boos of protesters, an aural reminder of the divisions that had split the country during one of its most disputed elections ever.

Nearby, in the exclusive "Pioneers" box on the parade route, Ken Lay watched the festivities. He was there amidst an elite group of about 200 men and women who had each raised $100,000 for Mr. Bush's campaign. Nearby, other Enron executives watched the parade from the elegant Willard hotel and office complex, two blocks from the White House, where the company's law firm, Vinson & Elkins, has its Washington office.

It had been a weekend to savor. Enron and its top two executives had kicked in $300,000 for the inauguration, and the company was one of the few to donate $50,000 for the Texas State Society's 2001 Black Tie and Boots Inaugural Ball, where Mr. Bush and the first lady stopped by to salute their Texan friends, including Mr. Lay.

The day after the inauguration, Mr. Lay attended a private luncheon at the White House, where he was able to spend a few minutes with the new president, a luncheon guest said. That night, Enron hosted a private dinner for several congressmen. Mr. Lay did not attend, but his second in command, Jeffrey K. Skilling, did.

Enron's sharp elbows had already been noticed in Washington. Curtis L. Hιbert Jr., then chairman of the Federal Energy Regulatory Commission, had gotten a call from Mr. Lay early in the year. As Mr. Hιbert recalled the incident, Mr. Lay said that Enron would continue to support him in his new job if he dropped his reservations about electricity deregulation. Mr. Hιbert said he had refused. In an interview earlier this year, Mr. Lay remembered the events differently, saying that Mr. Hιbert sought Enron's support at the White House. Either way, the message was clear: Enron, a generous contributor to the Bush campaign, would use its White House access to advance its interests.

Its power base in Houston seemed secure. Its stock price was hovering around $80 a share — not its high, but not far from it. And on Feb. 5, scores of special bonus checks were cut for Enron executives, who would collect tens of millions of dollars because of the company's strong reported profits.

The mood that same day was far less jubilant in the nearby offices of Arthur Andersen, Enron's outside accounting firm. There, David B. Duncan and Thomas H. Bauer — two of the firm's lead accountants on the Enron account — joined a group of six colleagues in a conference room for a meeting. Six more Andersen executives were patched in by speakerphone.

For a significant amount of time, according to notes of the meeting, the Andersen accountants debated a critical point: What should they do about two partnerships — called LJM1 and LJM2 — that had been set up 18 months earlier by Enron's chief financial officer, Andrew S. Fastow?

Since mid-1999, Enron had engaged in a score of transactions with the Fastow partnerships. It sold the LJM1 partnership a stake in a Brazilian power project and, later, purchased it back. It sold the same partnership a stake in any future gains on one of its technology investments, a complex arrangement that allowed it to report a paper profit on the deal.

On its face, this arrangement partly reflected a common financing technique: decreasing the company's risk by moving its holdings into separate partnerships that could be sold to outside investors more willing to assume those risks. And Enron's board, which had approved Mr. Fastow's dual role in 1999, had ordered that top management — Richard A. Causey, the chief accounting officer; Richard B. Buy, the chief risk officer; and Mr. Skilling — carefully monitor these deals.

Later, the board's special investigators concluded that these partnerships, and others they spawned, had been twisted at Enron into a tool for making the company seem far more profitable that it really was.

If those allegations are true, there is no sign from the notes of the Feb. 5 meeting at Andersen's Houston office that anyone there knew it. Still, the accountants seemed uncomfortable with the LJM arrangement. To solve that, they drew up a "to do" list, which included suggesting that a special committee of the Enron board be set up to review the fairness of the LJM deals, according to the notes. They also decided to make sure with Enron that LJM met accounting tests that allowed it to be treated as a separate entity, rather than as a subsidiary whose financial results would have to be shown on Enron's books.

The opportunity to cross to-do's off the list came just one week later, on Feb. 12. That day, the Enron board's audit and compliance committee held a meeting, and both Mr. Duncan and Mr. Bauer from Andersen attended. At one point, all Enron executives were excused from the room, and the two Andersen accountants were asked by directors if they had any concerns they wished to express, documents show.

Subsequent testimony by board members suggests the accountants raised nothing from their to-do list. "There is no evidence of any discussion by either Andersen representative about the problems or concerns they apparently had discussed internally just one week earlier," said the special committee report released last weekend.

That same day, though, Enron's board approved a big decision: Mr. Skilling, long the second in command at Enron, would be taking over as chief executive. Mr. Lay would remain as chairman.

In stepping aside, Mr. Lay left to Mr. Skilling — whose manner was seen by many as far more abrasive and abrupt — the delicate task of explaining Enron to its critics. By the time Mr. Skilling was named chief executive, the company had become a lightning rod for political outrage over the electric power crisis in California, which was experiencing brownouts and price spikes. Enron's traders bought and sold electric power, and California utility officials were accusing it and other national power companies of manipulating that esoteric market to reap windfall profits at consumers' expense. Enron and other major trading companies denied the accusation, but there were demands for a full-scale investigation.

In late March, a television crew from "Frontline," the PBS news magazine, visited Enron's sleek office towers in Houston as they prepared a documentary on the power crisis. Mr. Skilling responded to the company's critics on camera. "We are doing the right thing," he said during an interview in a fishbowl room at the edge of Enron's busy trading floor, where traders were buying kilowatt-hours in one part of the country to sell at higher prices elsewhere. "We are looking to create open, competitive, fair markets. And in open, competitive, fair markets, prices are lower and customers get better service."

He added: "We are the good guys. We are on the side of the angels."

After the interview, as Mr. Skilling led the film crew out onto the trading floor, he was asked what his top priority would be as chief executive. His answer came lightning-fast: "To get the stock price up," he said.

Few people outside Enron knew how important that single goal was.

Seeking a Quick Fix
Struggling to Avoid Posting Huge Losses

What made Enron's stock price so important was the fact that some of the company's most important deals with the partnerships run by Mr. Fastow — deals that had allowed Enron to keep hundreds of millions of dollars of potential losses off its books — were financed, in effect, with Enron stock. Those transactions could fall apart if the stock price fell too far.

Indeed, Enron's contracts with some of these partnerships had provisions, called triggers, that required Enron's stock price to stay above certain specific levels. If it did not, and if Enron's own credit rating fell, Enron faced a variety of consequences, all of them damaging to its reported profits.

When Enron's stock was trading as high as $90, the stock prices attached to these triggers — $57.78 a share in one case, $47 a share in another, $28 in a third — no doubt seemed absurdly low. But as Enron's share price hovered around $70 a share in early March, the risk these trigger provisions would be activated grew. Enron's deals with a quartet of Fastow partnerships known as the Raptors — deals that were keeping roughly $504 million in red ink off Enron's books — were especially worrisome.

For months, Enron's accountants had been struggling to keep the Raptors afloat. Like many of the Fastow partnerships, they were financed, directly or indirectly, with Enron stock. They had been formed to assume the risks of future losses on Enron's portfolio of volatile technology stocks, so that Enron could erase those risks from its own financial statements.

But under accounting rules, Enron could only keep those losses off its books if the Raptors remained financially healthy enough to fulfill their obligations. As the Nasdaq boom in technology stocks fizzled, the losses that the Raptors had promised to cover were ballooning. At the same time, Enron's stock was falling in value, reducing the Raptors' ability to cover those losses. The Raptor structure was in peril, and if it failed, Enron would have had to accept that $504 million write-off.

One reason the Raptors were so shaky may have been the fact that, according to the board report, they had already paid out more than $160 million to Mr. Fastow's LJM partnerships, whose investors included Merrill Lynch, J. P. Morgan Chase, Citigroup, the MacArthur Foundation and the Arkansas Teacher Retirement System.

As the March deadline for financial reporting approached, and as Enron's stock continued a slide that brought it below $60 a share, the company's financial experts struggled to find a way to make the Raptors strong enough to meet the accounting tests that allowed Enron to avoid reporting the gargantuan losses. According to the board committee's report, senior Enron employees said Mr. Skilling was "intensely interested" in the Raptor credit problems and called resolving them "one of the company's highest priorities." Mr. Skilling disputes that account, insisting that he was only vaguely aware of the credit problems.

Finally, on March 26, just days before the end of the first quarter, the accountants found a way to refinance the Raptors, using a series of complex and fragile transactions that were still vulnerable to further declines in Enron's stock price. The accountants and financial officers celebrated their ingenuity, according to the board report. But they had merely put off the inevitable.

"Especially after the restructuring," the report says, "the Raptors were little more than a highly complex accounting construct that was destined to collapse."

But while this frantic rescue effort was under way, Enron executives put the final touches on a separate deal that allowed some of them to get millions. The same day the Raptor deal was completed, Enron did another deal, this one with a supposedly unrelated partnership named Chewco.

Chewco owned a stake in yet a third Enron-linked partnership, called JEDI, and wanted to sell that stake to Enron. Enron agreed to buy it for $35 million. What few inside Enron — and almost no one outside Enron — knew was that Chewco was actually controlled by Michael J. Kopper, a managing director on Mr. Fastow's staff. After all the debts and fees were settled, Mr. Kopper and his domestic partner, William D. Dodson, had gotten about $10 million from their Chewco investment, according to the board's report. Neither Mr. Kopper nor Mr. Dodson have returned repeated telephone calls seeking comment.

Two weeks later, on April 17, Enron presented its first-quarter results to investors, and the company's executives were positively giddy. With the huge Raptor losses shuffled away, Enron reported $425 million in earnings, another banner quarter.

That day, the company set up a conference call with Wall Street analysts. As they waited on hold for the executives to come on the line, the analysts listened to faint music. Suddenly, an operator broke in, announcing the arrival of Enron's top brass.

"I hope you all heard that music that was on," Mr. Skilling announced, according to a tape recording of the conversation. "We're all dancing here. It's pretty good stuff."

For about 15 minutes, Mr. Skilling laid out the details of Enron's performance. Nothing was said by any of the Enron executives about the Raptors, the single most important transaction in the quarter.

"So in conclusion, first-quarter results were great," Mr. Skilling said. "We are very optimistic about our new businesses and are confident that our record of growth is sustainable for many years to come."

With that, the executives opened the call for questions. When asked about reserves the company had for its exposure in California — where the state's biggest utility, Pacific Gas and Electric, had filed for bankruptcy protection in the wake of the power crises there — Mr. Skilling almost bristled. Enron had been in the business for 10 years, he said; it analyzed the credit quality of every trading partner it had — some 5,000 in total — every day. There was no reason for anyone to worry about credit exposures; Enron knew everything it needed to know.

Later in the call, Richard Grubman from Highfields Capital Management was called on to speak. Mr. Grubman was not a booster of Enron stock — indeed, he had made investments that would have allowed him to profit if the stock declined — and he questioned why Enron did not release its balance sheet, listing its assets and liabilities, at the same time it reported its profits.

Mr. Skilling said that was not Enron's policy, but Mr. Grubman pressed the issue.

"You're the only financial institution that can't produce a balance sheet or a cash flow statement with their earnings," Mr. Grubman said, at last.

Mr. Skilling paused. "Well, thank you very much," he said. "We appreciate it."

Then Mr. Skilling turned to his colleagues in Houston, and muttered a vulgarity. The group in Houston laughed; some of the analysts on the line, who had heard everything, were stunned.

Questions of Conflicts
A Corporate Lawyer Raises Red Flags

For Jordan Mintz, the 20th floor of Enron's Houston headquarters was a study in dysfunctionality. After 18 years as a tax attorney, Mr. Mintz had been delighted in October 2000, when he had been moved to that floor to work as a lawyer with Mr. Fastow's finance division. After two days of orientation, Mr. Mintz set to work, finding files upon files of documents detailing the transactions of the Fastow partnerships.

What he saw troubled him. Mr. Fastow was negotiating deals on behalf of the partnerships across the table from his own subordinates, who were representing Enron. Approval sheets for those deals had not been signed by Mr. Skilling, the chief operating officer, even though they all had a line for his signature. The whole situation seemed fraught with peril.

Mr. Mintz sought out Mr. Causey, the chief accounting officer, and Mr. Buy, the chief risk officer. He told them he wanted to approach Mr. Skilling, now the chief executive, about the unsigned approval sheets, and also to make sure that he was still comfortable with Mr. Fastow's built-in conflicts.

Mr. Causey was blunt in his advice. "I wouldn't stick my neck out," he said, according to Mr. Mintz's Congressional testimony. Mr. Mintz interpreted that as a warning to avoid tangling with Mr. Skilling over the partnerships, he said.

Eventually, the three men agreed that Mr. Mintz should send a memo to Mr. Skilling, diplomatically raising his concerns. So, on May 22, Mr. Mintz wrote a confidential memo to the Enron chief executive saying he wanted to bring over the unsigned paperwork for Enron's deals with Mr. Fastow's partnerships during the previous year so that Mr. Skilling could sign them.

"To that end, I will arrange to get on your schedule to assist you in this regard," Mr. Mintz wrote. "Alternatively, I can send such approval sheets to you as a package and you can sign them at your convenience.

Mr. Skilling never responded, according to Mr. Mintz's testimony.

Increasingly worried, Mr. Mintz decided he needed an independent review of the partnership arrangements. So without informing his superiors, he retained, on behalf of the company, an outside law firm — Fried, Frank, Harris, Shriver & Jacobson from Washington — to take a look.

In June, he got his answer. The Fried, Frank lawyers raised some questions about the candor of the company's previous public descriptions of the arrangements and made some preliminary recommendations about how to handle such disclosures in the future if Mr. Fastow decided to sell his stake to Mr. Kopper, as he had indicated he might do. Comforted somewhat, Mr. Mintz hoped the sale to Mr. Kopper, which went through in July, would make life on the 20th floor a bit less difficult.

To the world outside the Enron tower, of course, the company seemed as powerful and fascinating as ever. On June 12, Jeff Skilling was featured as the final speaker at the Strategic Directions technology conference in Las Vegas, where he planned to share his vision of how Enron was creating a robust trading market in cyberspace. The executive who introduced him noted that Enron was being hailed as "America's most innovative company" and that Mr. Skilling had been declared "the No. 1 C.E.O. in the entire country."

With that, a video tape shows, Mr. Skilling bounded onto the stage, tieless and in a sports coat. The Internet, he told the crowd, had barely begun to show its usefulness to business. American industry would be transformed by its prowess, and the future of Enron would be found there, he said. "We couldn't do what we're doing now without the technology of the Internet," he said.

After a lengthy speech, Mr. Skilling asked for questions from the assembled crowd. One of the last questioners asked Mr. Skilling for his thoughts about the power crisis in California, and what the state should have done differently to avoid its problems.

"Oh, I can't help myself," Mr. Skilling said, according to the tape. "You know what the difference is between the state of California and the Titanic?"

The crowd laughed appreciatively.

"I know I'm going to regret this," Mr. Skilling said, almost to himself. ,p> He looked back at the audience. "At least when the Titanic went down, the lights were on," he said.

State officials reacted in outrage when they heard of Mr. Skilling's jest, and the bad relations between California and Enron worsened. Nine days later, Mr. Skilling traveled to California, where a protester hit him in the face with a cream pie.

But that public pratfall was minor compared to the damage being inflicted on Enron's stock. By mid-June, its stock price had fallen below $50 a share, alarmingly close to those "trigger" prices that had once seemed so ludicrously remote. One trigger — at $47 — was embedded in the Raptor partnerships, which had been propped up so painstakingly in the spring. On Monday, July 23, Enron's stock closed at $46.66. It would never rise above $47 again.

As the stock price fell, the Fastow partnerships that had insulated Enron from losses for years came under increasing pressure, pressure that would ultimately send Enron into a death spiral.

By then, the world inside Enron would seem very different. On Aug. 14, stunning the market, Jeff Skilling announced he was resigning after just six months as chief executive, citing undisclosed personal reasons. He left assuring investors that the finances of Enron had never been better.

More Disturbing Questions
An Employee Worries if `We Will Implode'

"Has Enron become a risky place to work? For those of us who didn't get rich over the last few years, can we afford to stay?"

The words almost leapt off the one-page, unsigned letter to Ken Lay. After Mr. Skilling's resignation, Mr. Lay had returned as chief executive and had been meeting with employees, encouraging them to write about their concerns anonymously.

But this letter was not some mundane complaint. The writer described in detail problems with Enron's partnerships, problems that the letter claimed would cause huge financial upheavals at the company in as little as a year. "I am incredibly nervous that we will implode in a wave of accounting scandals," the letter's author wrote. "Skilling is resigning for `personal reasons,' but I think he wasn't having fun, looked down the road and knew this stuff was unfixable and would rather abandon ship now than resign in shame in two years."

Mr. Lay took a copy of the letter to James V. Derrick Jr., Enron's general counsel, who agreed it needed to be investigated. They decided to assign the task to Vinson & Elkins — which had helped prepare some of the legal documents for some of the partnerships. Enron wanted answers fast, and told the outside lawyers not to spend time examining the accounting treatment recommended by Arthur Andersen — although that was the heart of the letter's warnings.

The letter writer soon identified herself as Sherron S. Watkins, an accountant who had been laid off the previous spring, after eight years, and who had then been rehired in June to work for Mr. Fastow. Ms. Watkins and Mr. Lay made an appointment to talk on Aug. 22. Two days earlier, Ms. Watkins shared her worries with James A. Hecker, an Andersen accountant she knew.

"Sherron told me that she was concerned about the propriety of accounting for certain related-party transactions," Mr. Hecker wrote in a memo to the file the next day.

After Mr. Lay met with Ms. Watkins, Vinson & Elkins began its investigation. Lawyers from the firm interviewed Mr. Fastow, Mr. Duncan from Andersen, and other people involved in the transactions. But even as the lawyers were poking through Mr. Fastow's department, his conflicted role in the partnerships continued to create friction. Mr. Kopper, who had sold his Chewco assets to Enron so profitably months before, was insisting that Enron cover the $2.6 million tax liability from the sale, according to the board committee report.

Mr. Fastow checked with Mr. Derrick, Enron's general counsel, and was told "unequivocally" that there was no basis for it to be made, according to the board's report. Nevertheless, Enron's treasury department received orders to cut the check. On Sept. 18, the $2.6 million was sent to Chewco.

"There is credible evidence that Fastow authorized the payment to Chewco," the special committee's report says, adding that the payment — done against the explicit instructions of Enron's general counsel — was "one of the most serious issues we identified in connection with the Chewco buyout."

Three days later, on Sept. 21, the Vinson & Elkins lawyers investigating Sherron Watkins' warnings reported their findings to Mr. Lay and Mr. Derrick. There was no reason for concern, the lawyers reported. Everything in Mr. Fastow's operation seemed to be on the level. They promised a written report in a matter of weeks.

By then, it would be too late.

The Deals Unravel
The News Gets Worse and Shares Plummet

By late September, Enron was essentially doomed, although it would be weeks before that reality sank in. As most of the nation focused on the initial horror and the anguished aftermath of the September terrorist attacks, Mr. Lay was trying to reassure his own shaken work force, already stunned by Mr. Skilling's abrupt departure and their stock's continuing decline. In e-mail messages and conversations, he assured employees that Enron was strong and that its stock - for many, the bedrock of their retirement plans - would rebound. But that optimistic prospect had actually evaporated, sometime during those weeks, when auditors from Andersen discovered a mistake they had made, more than a year earlier, in Enron's books. The way they accounted for the Enron shares that had been used to finance the Raptor partnerships had incorrectly added $1 billion to the assets on Enron's balance sheet. Correcting the mistake would reduce those assets by $1 billion.

By this point, Mr. Lay and his advisers had also decided to dismantle the Raptor arrangements. That meant that the investment losses kept at bay for so long would have to be reported to shareholders. It also meant that an additional $200 million would have to be trimmed from Enron's assets.

On Oct. 15, Vinson & Elkins delivered its report saying that no further investigation into the partnerships was necessary. The next day, Enron announced it was deducting

$1 billion from its third-quarter earnings, producing its first quarterly loss in more than four years.

The next morning, the news for investors got even worse. The Wall Street Journal had reported that $35 million of Enron's losses were related to its dealings with two limited partnerships run by Mr. Fastow. As one thread pulled away, the whole garment unraveled. The stock price, which had been in the low $30's, dropped to just above $20 a share on Monday, Oct. 22. During part of the price collapse, Enron employees with huge percentages of their retirement funds in Enron stock could not sell their shares because the company, coincidentally, was shifting the administration of its retirement plan. Employees' accounts were temporarily frozen.

With the market clamoring for action, on Oct. 24, Enron placed Mr. Fastow on leave. He would never return to the company.

The next day, Enron began casting about for a lifeline. Stanley Horton, the head of Enron's pipeline group, had lunch with Stephen W. Bergstrom, the president of a Houston rival, Dynegy Inc. Mr. Horton opened up, telling his competitor about the troubles unfolding at Enron. While he had not cleared the idea with Enron's chairman, Mr. Horton suggested that a merger of the two companies was the answer.

Intrigued, Mr. Bergstrom called Dynegy's chief executive, Chuck Watson, who was out of town attending his ailing mother in the hospital. The deal struck Mr. Watson as interesting - Dynegy had long resented the shadow of its crosstown competitor - but he insisted on hearing from Mr. Lay. The call came that afternoon, and the two men agreed they would meet the next morning.

Enron, concerned that it needed advice before proceeding further, reached out to the law firm of Weil, Gotshal & Manges in New York. Thomas Roberts, a Weil, Gotshal partner, was already planning to fly to Dallas the next day for a college scouting trip with his daughter. He agreed to hop a quick flight down to Houston from there.

Meanwhile, on the 20th floor in the Enron building, things were getting worse. Officials from Enron called Mr. Bauer at Andersen, asking some technical accounting questions. As they chatted, one of the Enron officials dropped a bomb: it appeared that Chewco, which had been counted as an independent entity, did not meet the accounting requirements for such a designation.

Over the coming days, according to a memo he wrote for the file, Mr. Bauer learned that papers for a secret side deal had been drawn up involving Mr. Fastow and Mr. Kopper when Chewco was formed. That side deal had shifted the ownership of Chewco away from independent investors, a fact that meant Chewco - and even JEDI - had never been independent entities. Instead, all of Enron's transactions with them had simply been transactions with itself. The accountants at Andersen informed Enron that the hiding of the side deal may have been a criminal act.

Even with talks under way with Dynegy, the chances that Enron would survive must have seemed slim. The stock price had fallen to just above $15 a share, and was still sinking. Credit rating agencies were considering a reduction in Enron's rating, which would only increase the financial pressure. On Oct. 26, with options running out, Mr. Lay reached out to his friends in Washington.

He telephoned Donald L. Evans, the commerce secretary and one of President Bush's closest friends, with whom he frequently spoke. But Mr. Evans was in St. Louis for the day.

On Saturday, Dynegy's Mr. Watson arrived at Mr. Lay's home, and the two men hammered out a deal in the kitchen. Mr. Lay agreed that he would step down from the merged company. At the same time, Mr. Roberts and a colleague from Weil, Gotshal headed to Enron to explore other options for the company. The lawyers thought they would be there for a couple of hours; they did not leave that day.

By Sunday, Mr. Lay was back on the phone to Washington, this time calling Paul H. O'Neill, the Treasury secretary, at his apartment in the Watergate. Mr. Lay described Enron's problems, suggesting that the company's collapse could put the entire financial system at risk. Mr. O'Neill then asked Peter R. Fisher, the under secretary for domestic finance, to examine that thesis. Mr. Fisher ultimately advised Mr. O'Neill that such aftershocks were unlikely.

On Monday, Oct. 29, Mr. Evans returned to his office and telephoned Houston. Mr. Lay ``indicated that he would welcome any support the secretary thought appropriate'' in dealing with the credit rating agencies, said James Dyke, Mr. Evans's spokesman.

Later that morning, Mr. Evans went to the weekly meeting of the administration's economic team at the Treasury Department. Before going into lunch in a small conference room off the Treasury secretary's office, he pulled Mr. O'Neill aside and mentioned the call from Mr. Lay. Mr. O'Neill responded that he had also received a call, and that he, too, had decided against intervening.

Time Runs Out
Lurching Toward Bankruptcy Court

On the surface, the Dynegy deal seemed to be Enron's salvation. The two boards tentatively agreed to the merger on Nov. 7. But by then, Enron had announced that its storied financial performance since 1997 had been an illusion, one created in large part by Mr. Fastow's partnerships.

The news jolted an already disbelieving marketplace: Correcting the improper accounting for its dealings with Fastow partnerships since 1997, Enron reported, meant $600 million in previously reported profits were wiped out.

Enron assured the Dynegy officials that its businesses were sound, and its only problems stemmed from a temporary panic in the market, triggered by the news of the $1.2 billion equity reduction.

Mr. Lay worked hard to reassure investors that the surprises were over. ``Everything we know, you know,'' he said in a conference call with analysts.

But again, the truth of Enron was far different than its projection of strength. The company was hemorrhaging cash; it burned through $2 billion in just the week after it signed the merger agreement. Worse, it could not account for where a large portion of that money had gone. And it told Dynegy nothing about it.

On Nov. 19, the bottom dropped out. Enron filed its quarterly report, known as a 10-Q, revealing the drain of cash and the fact that payment on a note had been accelerated because of the troubles; Enron owed $690 million, payable within days.

At Dynegy, executives were outraged. They had received little advance warning that the revelations in the filing were coming. And now, with the market in a full-blown panic, Enron shares dropped from $9.06 a share to $6.99 a share on Nov. 20.

Mr. Watson of Dynegy was soon on the phone with Mr. Lay, and sent a follow-up letter documenting their discussion. ``We have not been consulted in a timely manner regarding developments since November 9,'' the letter said. ``We were not briefed in advance on the issues in your 10-Q. Our team had to make repeated phone calls to your finance and accounting officials in an attempt to obtain information. Some of the most significant information in the Q was never shown to us at all.''

Calls went out the night before Thanksgiving to lawyers, bankers and advisers. The day after the holiday, Enron sent a corporate plane to New York to bring everyone to Houston. In Houston, a series of proposals were floated that weekend for a debt ``holiday'' for Enron until the merger was completed. But, trying to wriggle its way out of the $690 million debt payment that was due, Enron had made commitments that prevented any deal from going forward.

The negotiations now moved to the Doral Arrowwood Resort and Conference Center in Rye Brook, N.Y. The advisers took up several conference rooms; only once were they disturbed, when a wedding reception was held outside where they were working.

On Monday, Nov. 26, it seemed that an agreement had been reached for a deal at a reduced price. Mr. Lay and the contingent from Enron headed to the airport at Teterboro, N.J., where the corporate plane awaited them. But just as they were taxiing on the runway, a call came through on one executive's cellphone with news that Mr. Watson was saying he could not sign off on a deal without his board's approval. The airplane headed back to the hangar, where Mr. Lay took part in a conference call with advisers and Dynegy officials.

On Wednesday morning, Nov. 28, some of Enron's directors gathered in the company's board room; others phoned in. They were prepared to discuss possible changes in the merger agreement. But before that started, Mr. Lay was notified that he had a call waiting outside.

Mr. Lay left the room for a few minutes, then returned looking downhearted. ``I just talked to Chuck Watson,'' he said, according to a person who was there. ``He said he's terminating the merger.''

Time was up. Enron had no options left. Beginning at noon on Monday, lawyers descended on Enron again, struggling to assemble a list of creditors and other information they needed to finally seek bankruptcy protection. At 7 p.m. Saturday, Dec. 1, the board of Enron met for a several-hour meeting. Finally, the motion to declare bankruptcy was put before the directors. They unanimously supported it.

The lawyers worked through the night, putting the finishing touches on the filing. Then, early in the morning of Dec. 2, Steven Vacek, a paralegal in Weil, Gotshal's Houston office, sat down in front of a computer and signed onto the Internet site for the Federal Bankruptcy Court in New York. The necessary information was filled in, and the attachments made.

At 4:28 a.m., Mr. Vacek clicked the ``submit'' button. The bankruptcy petition was filed.

Enron, which was supposed to have found its future in cyberspace, instead had turned to the Internet to declare its demise.

Jeff Gerth, Richard A. Oppel Jr., Richard W. Stevenson, and Don Van Natta Jr. also contributed to this article.

The Ineffective Enron Board

Knight Ridder Newspapers – by Gregg Fields - February 11, 2002

HOUSTON - Enron's board of directors contained a wealth of stars and bright lights from the fields of academia, business and government.

An English lord. A revered business dean. A consummate Washington insider.

But the directors, paid an average of $86,000 a year, failed to see disaster coming. Failed to protect shareholders. And failed to follow up on circumstances they knew were unusual.

Experts say the failures on Enron's board were particularly glaring on its audit and compliance committee, charged with guaranteeing that accounting systems are clean and error-free.

Enron's audit committee, half of which didn't live in the United States, appears compromised by an unfamiliarity with the Byzantine accounting the company employed, lulled into complacency by years of close relations with management, and highly dependent on the generosity of the company for other business relationships. Enron donated $50,000 to a foundation run by one director, for example, and gave $72,000 a year to another in consulting fees.

And the practices are not that uncommon.

"In a way, it's why this situation is so scary," said Ralph Ward, publisher of Boardroom Insider, a newsletter that tracks corporate governance issues. "I think a lot of corporate directors are repelled by what happened. But they're also thinking, `There but for the grace of God go I.' "

That, in fact, was the plight that Richard Jaedicke, a director since Enron was born in the mid-1980s, found himself in.

"It's hard for me to understand why none of the controls we put in place, of which there were many, didn't seem to work," Jaedicke, a board member since 1985 and chairman of the board's audit committee, told a Congressional panel last week.

Experts like Jaedicke, 73, former dean of the Graduate School of Business at Stanford University, were a reason why CEO Magazine named Enron's board one of the top five in America last year.

So how did such qualified outside directors seem wholly unaware that they were sitting on an aneurysm of debt that was about to collapse into the biggest corporate bankruptcy ever?

Part of the problem was they didn't know, according to Congressional testimony and Enron's own damning internal report. But more importantly, they didn't bother to find out.

Enron, before it collapsed, had become one of America's largest corporations, with revenue of more than $100 billion a year.

Yet, the audit committee of the board is just six people. All of them are outside directors, which means they work part-time for the company and do not have management positions with it.

Jaedicke was chairman of the audit and compliance committee. And while no one could argue with his credentials, the fact that he had been audit committee chairman for 17 years is not a good sign, said Laurence Stybel, a partner in Stybel Peabody Lincolnshire, a Massachusetts consulting firm that specializes in boardroom issues.

"That was wrong," he says. "Flat wrong. It underscores the need for terms limits."

The fact is, outside directors are supposed to have a healthy skepticism - and rivalry with - the company. The audit committee is supposed to act as inquisitors of the outside accountants, which in this case was Arthur Andersen.

But inevitably, longtime directors grow comfortable, and the tough questions stop getting asked. "There's a climate and cache of politeness on the board," he says.

Enron's internal investigation contends this is, in fact, what happened with the audit committee. Too often, it took what it was told and probed no further. That would prove disastrous when it failed to keep a handle on secretive offshore partnerships, where Enron was parking billions of dollars in debt.

"The board cannot be faulted for failing to act on information that was withheld but it can be faulted for the limited scrutiny it gave to the transactions between Enron and the partnerships," the report said.

When the partnerships were reviewed, the report found, directors rarely spent more than a few minutes doing it. And whether they understood what they saw is being questioned.

While any global corporation would naturally want to have voices from other lands on its board, having such members serve on the audit committee can be a problem.

The reason: Audits are supposed to comply with Generally Accepted Accounting Principles. These are not universal standards but, rather, American ones. Yet, half of the six members of the audit committee lived abroad.

One was Paulo Ferraz Pereira, a Brazilian banker. He joined the board in 1999, and though the company's proxy doesn't say a lot about his background, sources in Brazil say he was instrumental in helping Enron crack the electricity market there.

To Boardroom Insider's Ward, a natural question is, how familiar were board members with U.S. accounting? In addition, one member, Ronnie Chan, head of a Hong Kong real estate firm and also a director at Motorola, missed more than a fourth of the committee's meetings, according to Enron's proxy.

"There was little point in relying on the audit and compliance committee review as a control over these transactions if that review did not have more depth and substance," said the internal report.

Not that audit committee members lacked qualifications. One of the most prominent was Wendy Gramm. A longtime Washington insider, she was formerly head of the Commodity Futures Trading Commission and is married to Phil Gramm, a longtime power on the Senate Banking Committee.

In 1993, when Gramm headed the CFTC, she gave Enron the green light to trade complicated contracts known as energy futures derivatives without government oversight. (Most commodity trading, such as on the Chicago trading floors, is government regulated.) It would become the company's leading product. Shortly after the decision, Gramm left government and joined Enron's board.

Besides her political connections, Gramm brought considerable intellectual heft to the Enron board. She has a Ph.D in economics from Northwestern.

Today, Gramm runs the regulatory studies program at the Mercatus Center at George Mason University. On its homepage, under the heading The Problem, the center says: "Regulations cost Americans about $700 billion per year or about $8,000 per household. This regulatory burden continues to grow without adequate evaluation."

In that regard, some experts question whether Enron's outside directors differed enough intellectually from company management. If the goal is to generate ideas and fuel debate, it would appear an Enron board meeting was a room with one view.

"Expertise isn't enough," said Nell Minow, head of The Corporate Library, a Washington center that studies corporate governance. "I'm not asking them to be adversaries, but to exert their independence. These are not supposed to be milquetoast people."

Gramm also developed especially close financial ties to the company. Her Mercatus Center got $50,000 from Enron, in 1998 she sold nearly $300,000 worth of company stock, and her husband received huge campaign contributions from the company. In 2000, he helped liberalize commodity trading laws again in Enron's favor.

This pattern of ensconcing directors with whom it shared either business philosophies or economic ties - or both - recurs across Enron's board.

One member, for instance, was John Mendelsohn, head of the M.D. Anderson Cancer Center in Houston, which received generous gifts from Enron through the years.

Another case in point: Lord John Wakeham.

A longtime player on the British political scene, a survivor of a brutal IRA bombing and member of the House of Lords, Wakeham was formerly the secretary of energy in the Thatcher and Major governments. In that capacity, he helped move Great Britain toward privatizing its electricity industry, clips from English newspapers show.

Enron benefited mightily, garnering a contract worth 700 million British pounds to build an electric plant.

Four years later, Wakeham joined Enron's board. But while he's officially retired, Wakeham still works as a consultant. At least, he does for Enron, which pays him $72,000 a year for his services, according to the company's proxy statement. That's in addition to his director's fee. It doesn't specify what services he performs.

Ward, of Boardroom Insider, said that directors getting consulting fees on the side is a growing trend. "It doesn't look good today, but six months ago it didn't look bad," Ward says. (In fact, Enron's other outside directors, serving on other committees, also had extensive dealings with the company.) "It's like Sept. 11, where standards for security that were acceptable before are not acceptable any longer."

Deregulation - Page 9 - 2002