Enron Never Happened Or corporate America is in denial. But investors shouldn't ignore the ongoing arrogance.
By Herb Greenberg

(FORTUNE Magazine) – Since the Enron debacle began to unfold back in the fall of 2001, there's been a wave of corporate scrutiny and fessing up. While plenty of good has come out of the scandals in terms of real reform, as I look around at the shenanigans still going on it almost feels as if Enron never happened. I'm not just talking about cases of outright fraud, as has been alleged at companies like Royal Ahold and HealthSouth. There continues to be a healthy dose of the aggressive, often arrogant behavior, a la Enron, that is aimed at either silencing critics or making financial results look better than they really are.

Take, for example, medical-products maker Cooper Cos. Two years ago I wrote in FORTUNE about how companies were incorrectly telling investors to use Ebitda, or earnings before interest, taxes, depreciation, and amortization, as a substitute for cash flow. Many companies have since stopped flaunting anything like Ebitda, which isn't in keeping with Generally Accepted Accounting Principles. But not Cooper.

In its first-quarter earnings release in late February, Cooper instructed investors to view pretax income from continuing operations plus depreciation and amortization, or "cash flow per share," as the "most appropriate measure of our liquidity and financial strength, particularly when calculated consistently over time." It went on to stress that cash flow per share, which rose 38%, is "more informative" than "the more common non-GAAP measure of liquidity" called Ebitda. What Cooper didn't disclose in the same release was that its operating cash flow, a GAAP-acceptable figure, tumbled by 25% from a year earlier. And the real McCoy measure, free cash flow, fell 33%, to negative $2.8 million. Cooper's CFO Robert Weiss responds that cash flow per share is used as a "shortcut" in lieu of actual cash-flow numbers, which aren't generally available when earnings are released, and that investors should focus on cash flow for a 12-month period rather than one quarter.

One hallmark of Enron's arrogant behavior was its bullying of critics. Fresh Del Monte Produce CEO Mohammad Abu-Ghazaleh has obviously learned how to play that game. On a Feb. 11 earnings conference call, he went on the attack in a style reminiscent of former Enron CEO Jeff Skilling (who once called an analyst an "asshole" after he pressed for details about the company's balance sheet). Responding to analyst Heather Jones of BB&T Capital Markets, a longtime Fresh Del Monte skeptic who rates the stock "underweight," Abu-Ghazaleh said, "Let me tell you, Heather, one thing, please. You are covering us without our will, and we would not like you to ask questions on this conference call...." She then mentioned something about the SEC but was cut short by Abu-Ghazaleh, who added, "... you have not been covering us in any objective way, and we thank you for being on this call. But we don't like to answer your questions."

Fresh Del Monte has since filed a lawsuit against another company charging a conspiracy "aimed at lowering" the price of Fresh Del Monte's stock "and tarnishing its reputation in hopes of extorting money from the company." Among those named as co-conspirators: analyst Jones. BB&T says it supports her "outstanding work." Fresh Del Monte did not return calls for comment. Its stock is down 20% since the conference call.

Perhaps no company embodies the post-Enron arrogance more than Tyco (for a different take, see "Exorcism at Tyco"). After a forensic audit, the company in late December said it was taking charges of $382 million for improper accounting, more than half of which was related to the company's fire and security unit. The news came just in time for Tyco to raise $4.5 billion in cash through the sale of securities. Then, within three months, the company said a subsequent audit revealed additional accounting problems of as much as $325 million at the fire and security unit. How could the forensic audit have missed something so material? Tyco officials said that it wasn't intended to look at everything.

It's disturbing to find that same carefree attitude in the very place you'd least expect it: the New York Stock Exchange. The NYSE is charged with regulating members and prides itself on being the first line of defense in corporate governance. Yet the exchange's top officials, including chairman Dick Grasso, are free to sit on boards of listed companies. The NYSE says the experience gives them perspective and emphasizes that they're walled off from decisions affecting those companies. Maybe. But the Nasdaq doesn't allow its executives to sit on boards of member companies. The reason is that it creates the appearance of a conflict, which, post-Enron, one would expect the NYSE to go out of its way to avoid. But then again, Enron? Never heard of it.

Herb Greenberg is a senior columnist for TheStreet.com. Questions? Comments? Contact him by e-mail at herb.greenberg@thestreet.com