SENATOR CARL LEVEN ON THE FALL OF ENRON REMINDERS

The following excerpt is from U.S. Senator Carl Leven's website:

Important Reminders from Enron's Fall

12-09-2011

Ten years ago this month, Enron collapsed, bankrupting the seventh largest U.S. corporation at the time and ripping away the mask from a massive and damaging corporate fraud.

This is a good time to reflect on what happened a decade ago and how many of the misdeeds that led to Enron’s collapse are still far too prevalent today. We shouldn’t forget how the culture of Enron – built on outsized corporate pay, conflicts of interest, tax evasion, financial engineering, and hidden debt – did so much harm to so many, and nearly brought the global economy to its knees. That culture is still too big a part of our financial system.

The Senate Permanent Subcommittee on Investigations, which I chair, released reports on the failure of Enron’s board members to safeguard shareholder interests; actions taken by major financial institutions to help Enron cook its books; and Enron’s use of financial engineering to make its financial results look better than they were, while evading taxes.

The findings we reached in the aftermath of Enron’s demise are worth keeping in mind as we consider our economic future. Why should we remember Enron?

• Runaway executive pay.  Enron paid its CEO Ken Lay $140 million in 2000, including $123 million in stock options. Enron set the standard for outrageous CEO pay, and demonstrated how, in search of ever-larger paychecks, CEOs can lead companies into ever-riskier schemes that endanger not just shareholders, but the economy as a whole.

• Tax evasion.  Despite reporting huge profits, Enron paid no taxes in four of its last five years and used tax scams and offshore shell entities to dodge paying its fair share.  Today, dozens of U.S. corporations use similar tactics not only to dodge Uncle Sam, but claim huge tax rebates. Enron was a catalyst for today’s corporate tax cheats.

• Corporate conflicts of interest. Enron’s chief financial officer profited by using his own company, LJM, to do deals with Enron to cook its books. Heedless of Enron’s example, banks such as Goldman Sachs and Citi later set up synthetic securities, sold shares to clients, and profited by betting against their own clients.  Enron helped create a culture of corporations failing to do right by their clients.

• Accounting conflicts.  Enron’s accounting firm, Arthur Andersen, approved financial statements loaded up with fraud. Despite Enron’s cautionary tale, so did accountants for Madoff Securities, Olympus, and other firms that have collapsed in years since, damaging investors, consumers and market stability. Enron showed how accountants reliant on revenues from clients can be convinced to look the other way. It’s still happening today.

• Credit rating conflicts. Credit rating agencies gave Enron AAA ratings until it collapsed. They have given the same AAA ratings to toxic securities, failing corporations, and deadbeat banks, often because issuing tougher ratings would cost them business. Enron exposed the unreliability of credit rating agencies that place the search for market share above the need for objective analysis. 

• Excessive speculation.  Enron speculated and manipulated electricity prices for big profits. Today, speculators whipsaw the American economy with roller coaster energy, metal, and food prices.  Enron jacked up the commodity business to everyone’s detriment but the speculators; and without tough enforcement of anti-speculation laws, the damage will continue.

• Financial engineering. Enron designed countless financial engineering gimmicks that served its financial interests but endangered clients and investors.  Today, financial firms rave about financial “innovations,” while pushing toxic products like auction securities, naked credit default swaps, and worse.  Enron showed how financial engineering creates weapons of mass destruction; a decade later, exotic financial products helped bring the U.S. economy to its knees.

• The need for regulators to stop the madness.  In response to Enron, the Sarbanes-Oxley Act banned multimillion-dollar corporate loans to corporate insiders, forced CEOs to certify their internal financial controls, and created new accounting oversight.  Those changes helped curb Enron-style abuses. Congress continued the cleanup in 2010 with Wall Street reform legislation, but much more needs to be done.  All of us should keep Enron in mind as financial regulators work to turn the law we passed into strong rules that can build new protections for consumers and the economy.

SEC CHARGES SIX FORMER EXECUTIVES WITH FRAUD

Executives of failing businesses will often misrepresent the condition of their business to investors. Enron was a prime example of a failing conglomerate that had executives lie about financial condition to shareholders. The following is an excerpt from the SEC web site which alleges that six executives hid information from investors :

“ Washington, D.C., May 4, 2011 – The Securities and Exchange Commission today charged six former leading executives affiliated with a Kansas-based financial corporation with hiding critical information from investors and conducting a financial fraud.
The SEC alleges that senior executives at Brooke Corporation and two subsidiaries – whose line of business was insurance agency franchising and providing loans to franchisees – misrepresented their deteriorating financial condition in filings to investors and other public statements in 2007 and 2008. Meanwhile, behind the scenes they engaged in various undisclosed schemes to meet almost weekly liquidity crises, and falsified reports and made accounting maneuvers to conceal the rapid deterioration of the loan portfolio.

Five of the six executives have agreed to settle the SEC’s charges against them. The Brooke companies are no longer in business.
“The unscrupulous senior corporate executives at Brooke Corporation orchestrated a massive scheme to conceal the company’s deteriorating financial condition through virtually any means necessary, including reporting inflated asset values, double-pledging collateral, and diverting funds for improper uses,” said Robert Khuzami, Director of the SEC’s Division of Enforcement. “The fallout from their fraud had a devastating impact on the livelihood of hundreds of insurance franchisees that depended on Brooke and on the balance sheets of regional banks and other lenders, all of whom mistakenly relied on the good faith and honesty of these executives.”
The SEC’s complaint filed in federal court in Kansas charged two brothers and four other leading executives at Brooke Corporation and its two publicly-traded subsidiaries – Brooke Capital Corporation (insurance agency franchisor) and Aleritas Capital Corporation (lender to insurance agency franchises and other businesses).
Robert D. Orr – founder and former chairman of the board of Brooke Corporation, former CEO and chairman of the board of Brooke Capital, former CFO of Aleritas.
Leland G. Orr – former CEO, CFO, and vice chairman of the board of Brooke Corporation, and former CFO of Brooke Capital.
Kyle L. Garst – former CEO, president, and member of the board of Brooke Capital.
Michael S. Hess – former CEO and member of the board of Aleritas.
Michael S. Lowry – former CEO and member of the board of Aleritas.
Travis W. Vrbas – former CFO of Brooke Corporation and Brooke Capital.
According to the SEC’s complaint, Brooke Capital’s former management inflated the number of franchise locations by including failed and abandoned locations in company totals. They concealed that the financial assistance to franchisees was so burdensome that Robert and Leland Orr secretly borrowed funds received from Brooke insurance customers to pay company operating expenses. That money was supposed to be held in trust for payment of insurance premiums. They also hid Brooke Capital’s inability to timely pay funds owed to profitable franchisees and creditors. Aleritas’s former management hid the company’s inability to repurchase millions of dollars of short-term loans sold to its network of regional lenders. They sold or pledged the same loans as collateral to multiple lenders, and improperly diverted payments from borrowers for the company’s operating expenses. Aleritas’s former management concealed the deterioration of the company’s loan portfolio by falsifying loan performance reports to lenders, understating loan loss reserves, and failing to write-down its residual interests in securitization and credit facility assets.
In October 2008, Brooke Corporation declared Chapter 11 bankruptcy and suspended most of their operations. The companies were unable to reorganize in bankruptcy. The rapid collapse of the Brooke Companies had a devastating regional impact as hundreds of its franchisees failed. As a result of losses suffered on Aleritas loans, several regional banks also failed.
The SEC’s complaint charges violations of, among other things, the antifraud, reporting, record-keeping, and internal controls provisions of the federal securities laws. The complaint seeks permanent injunctions, officer and director bars, and monetary remedies against the Brooke executives.
Robert Orr, Leland Orr, Hess, Lowry, and Vrbas agreed to settle the charges against them without admitting or denying the SEC’s allegations. The settlements are subject to the approval of the U.S. District Court for the District of Kansas. The executives each consented to orders of permanent injunction and permanent officer and director bars. Lowry agreed to pay a disgorgement of $214,500, prejudgment interest of $24,004, and a $175,000 penalty. Hess agreed to pay a $250,000 penalty, and Vrbas agreed to pay a $130,000 penalty. Robert Orr and Leland Orr agreed to pay penalties and disgorgement in amounts to be determined by the court.
The SEC’s case against Garst continues in litigation.
The SEC acknowledges the assistance and cooperation of the Office of the Kansas Securities Commissioner, the Kansas City Field Office of the Federal Bureau of Investigation, and the U.S. Attorney's Office for the District of Kansas.”