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News
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Andersen faces a fight for its life
Trial begins Monday as settlement hopes fade; Duncan expected to testily.
May 7, 2002: 4:55 PM EDT
By Luisa Beltran, CNN/Money Staff Writer

NEW YORK (CNN/Money) - Arthur Andersen LLP will be fighting for more than a not-guilty verdict at its trial next week. A loss for the troubled accounting firm could mean the days of the once powerful partnership may be numbered.

Andersen and Justice Department prosecutors are scheduled to face off in a federal court in Houston Monday, when the two sides begin picking jurors in the criminal trial against the firm. Andersen stands accused of obstructing justice when it shredded documents related to bankrupt energy trader Enron last year while it was on notice of a federal investigation.

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The teams will then proceed to opening arguments on Tuesday.

Weeks of negotiations broke down late last month when the Justice Department rejected a settlement proposal from Andersen. The two sides may still renew their talks to resolve the charge. Andersen could clinch a settlement anytime during the trial until a verdict is reached, legal experts said.

"We are ready for trial," Bryan Sierra, a Justice Department spokesman, said Friday.

Chicago-based Andersen faces a relatively short time to make its case to jurors. The Justice Department, which will be up first, has said it needs 15 days to depict how the conspiracy to shred documents spread throughout Andersen.

This means that Andersen will have less than three days to present its defense.

Last week, U.S. District Court Judge Melinda Harmon denied Andersen's lawyers' request for more time and the trial is set to end May 29 when Harmon will leave for vacation. Harmon is known as a conservative but fair judge who is best known for putting Vanessa Leggett in jail when the crime writer refused to turn over her notes in a 1997 murder case.

"That doesn't leave much time to put on a defense," said Rusty Hardin, Andersen's lead lawyer said. "All I want is equal time."

Hope for survival

Much of Andersen's hope for a victory will rest on Hardin, the folksy former prosecutor, who is well known among Houston residents and has a reputation for being an aggressive trial lawyer. Hardin led the team that beat former Guess jeans model Anna Nicole Smith's attempt to wring $2 billion from her late husband's estate (a judge later gave her $89 million in a related case).

Judge Melinda Harmon is overseeing the Andersen criminal case  
Judge Melinda Harmon is overseeing the Andersen criminal case

But even with Hardin's bulldog trial skills, Andersen has a slim chance of winning, legal experts said. Under the doctrine of respondeat superior, corporations are generally held liable for the acts of their employees. Stan Twardy, a former U.S. attorney for the state of Connecticut and now criminal defense lawyer with Day Berry & Howard, said the firm is likely to try to avoid a guilty verdict by seeking a jury nullification ruling, where jurors vote their conscience, ignore the law and acquit defendants.

"Andersen will try to paint the government as over-reaching and using heavy handed tactics to try to bring down an international accounting firm," said Robert Mintz, a former U.S. prosecutor and expert on white-collar crime, and now partner at McCarter & English, a Newark, N.J. law firm.

The original indictment and now the trial could speed up Andersen's collapse. The firm has already lost some serious business this year. More than 250 audit clients have dumped Andersen since January. This, in turn, was one of the reasons leading Andersen to lay off 7,000 of its U.S. employees.

"[Andersen] has to win this case if they have any hope of surviving," Mintz said.

Duncan's worth

A little over a month ago, Andersen was confident of winning the case and pushed for a speedy trial. But the accounting partnership lost much of its momentum when former partner David Duncan turned on the firm. Andersen fired Duncan, its lead audit partner on the Enron account, in January and attempted to place much of the blame for the shredding on him.

But Duncan struck a deal with Justice and on April 9 agreed to plead guilty to overseeing the shredding of Enron documents in an attempt to thwart a federal investigation.

The government will try to use his testimony to show that the plot to destroy documents spread throughout the firm and across multiple offices, experts said.

Duncan is expected to make the government's case stronger by implicating others at the firm, said Ira Sorkin, a former assistant U.S. attorney in New York who is now a criminal defense lawyer with the New York law firm Carter Ledyard & Milburn.

It is unknown who else the Justice Department may call as a witness and the agency will not make its witness list public. But Duncan's appearance is virtually assured. In fact, part of his plea deal with the Justice Department was his agreement to testify at the Andersen trial.

"Duncan continues to cooperate [with the government]," said Barry Flynn, his attorney, who declined further comment.

For its part, Andersen will stick with its "rogue employee" defense and seek to discredit the former audit partner. Duncan had initially denied any wrongdoing when he oversaw the destruction of Enron documents but then admitted in April that he tried to foil the government's investigation.

"Andersen will take desperate measures to save itself by shifting the blame," Mintz said.

David Duncan, the fired Andersen audit partner who is set to testify against the firm  
David Duncan, the fired Andersen audit partner who is set to testify against the firm

It is still unclear whether Duncan will serve any jail time or what sort of sentence he will face. He is to be sentenced Aug. 26. Under Duncan's plea deal, the former executive is immune to any further prosecution related to the Enron case as long as he continues to fully cooperate with federal authorities -- which could include testimony at future trials -- and agrees not to sell his story or otherwise profit from the debacle.

The government will likely use Duncan to testify against Enron executives, including former CEOs Kenneth Lay and Jeff Skilling and ex Chief Financial Officer Andrew Fastow, in future hearings.

"Duncan will not be sentenced until he has testified in every case that the government believes he will be a useful witness," Mintz said.

Another deal?

Andersen in-house counsel, Nancy Temple, will also likely be called to appear in the Andersen case. Temple is the Andersen attorney who sent the October e-mail that reminded executives about the firm's retention policy. Duncan has told Congressional investigators that the Temple e-mail spurred the shredding.

Some legal experts have said that Temple could face possible prosecution for perjury and aiding in the conspiracy to shred documents. Temple, in Congressional hearings in January, denied that she told anyone to destroy documents. But in March, when quizzed by attorneys in the class action lawsuit against Andersen, Temple refused to testify when asked about her role in the shredding of Enron documents.

The Andersen attorney is expected to remain silent and assert her Fifth Amendment right against self-incrimination if called to testify at the criminal trial. Temple could also opt for a deal similar to Duncan's, where she would testify against executives in exchange for some kind of immunity, experts said.

Temple, through her attorney Mark Hansen, could not be reached for comment.

The risk

Andersen served as Enron's auditor for 16 years before it was fired in January. The firm had a dual relationship with Enron, providing consulting work (for which it received millions of dollars in fees) while also serving as the firm's outside auditor. The Houston-based energy trader filed the largest bankruptcy in United States history on Dec. 2 and cut thousands of jobs.

The speed with which the government filed charges against Andersen has caused some to question the merits of the case. But Andersen did have a chance to resolve the case in March when it rejected a settlement proposal that would have called for the firm to acknowledge its guilt. Then came the Justice Department's rejection of Andersen's proposal and the subsequent collapse of negotiations.

"They are still being Andersen," said Arthur Bowman, editor of Bowman's Accounting Report, of the firm's reputation for arrogance. "There is the Andersen way and the wrong way. They played this all wrong."

And now the shredding of Enron documents (which have not been determined to be material to the Enron investigation) could bring down the 89-year old firm.

"At the end of the day, Andersen didn't have liability in Enron," Carter Ledyard's Sorkin said. "Sometimes the cover-up is worse than the crime."  Top of page






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Most stock quote data provided by BATS. Market indices are shown in real time, except for the DJIA, which is delayed by two minutes. All times are ET. Disclaimer. Morningstar: © 2018 Morningstar, Inc. All Rights Reserved. Factset: FactSet Research Systems Inc. 2018. All rights reserved. Chicago Mercantile Association: Certain market data is the property of Chicago Mercantile Exchange Inc. and its licensors. All rights reserved. Dow Jones: The Dow Jones branded indices are proprietary to and are calculated, distributed and marketed by DJI Opco, a subsidiary of S&P Dow Jones Indices LLC and have been licensed for use to S&P Opco, LLC and CNN. Standard & Poor's and S&P are registered trademarks of Standard & Poor's Financial Services LLC and Dow Jones is a registered trademark of Dow Jones Trademark Holdings LLC. All content of the Dow Jones branded indices © S&P Dow Jones Indices LLC 2018 and/or its affiliates.