The Wall Street Journal

January 20, 2006

PAGE ONE
DOW JONES REPRINTS
This copy is for your personal, non-commercial use only. To order presentation-ready copies for distribution to your colleagues, clients or customers, use the Order Reprints tool at the bottom of any article or visit:
http://www.djreprints.com/.

• See a sample reprint in PDF format.
• Order a reprint of this article now.


MORE ON ENRON
 
 Framing the Issue: Review the court case and the impact of Causey's plea deal2
 
 Timeline: Key events in the Enron case3
 
 Related documents4, by arrangement with FindLaw (http://www.findlaw.com/5)
 
 Complete coverage of Executives on Trial6
 

Last Stand
An Audacious Enron Defense:
Company's Moves Were All Legal

With $40 Million War Chest,
Skilling Calls on Lawyer
With Business Expertise
Hiring a Sociology Professor
By JOHN R. EMSHWILLER
Staff Reporter of THE WALL STREET JOURNAL
January 20, 2006; Page A1

HOUSTON -- Four years of investigations and intense news coverage have made Enron a synonym for fraud and sleaze. But when the trial of former top executives Jeffrey Skilling and Kenneth Lay begins Jan. 30, defense lawyers will make a bold argument: Everything their company did was legal.

That approach stands in stark contrast to some other big-name corporate defendants in recent history. Lawyers for former WorldCom Inc. Chief Executive Bernard Ebbers and former HealthSouth Corp. chief Richard Scrushy didn't dispute that large-scale financial shenanigans had occurred at the companies. They simply argued that their clients didn't know about the wrongdoing. A New York jury convicted Mr. Ebbers, while a Birmingham, Ala., jury acquitted Mr. Scrushy.

[Jeffrey Skilling]

To make his case, Mr. Skilling has chosen Daniel Petrocelli, a civil litigator with no criminal-trial experience. The 52-year-old Mr. Petrocelli will argue that the government is trying to criminalize legitimate accounting and financial decisions.

Mr. Skilling, also 52, is armed with an eye-popping war chest. To date, according to people familiar with the matter, he has supplied his lawyers with about $23 million of his own funds, supplemented by $17 million in insurance coverage that Enron had for its officers and directors. And that's before the trial even begins. Mr. Petrocelli says he plans to ask the case's presiding judge, Sim Lake, to free up more of Mr. Skilling's money to pay legal costs.

Mr. Lay reaped over $200 million and Mr. Skilling over $100 million from Enron in compensation and stock profits, according to an indictment that charges the men with conspiracy and securities fraud. The 63-year-old Mr. Lay has said that his available liquid assets total only about $1 million. Mr. Lay's lawyer, Michael Ramsey declined to comment on the Lays' finances, other than to say that his client has spent "millions" on his own defense. Mr. Ramsey acknowledged that the Skilling legal team has "been carrying the pretrial oars."

The remarkable spending by Mr. Skilling is paying for a phalanx of lawyers, document crunchers and other specialists that would be far out of reach for the average criminal defendant. Those on the payroll have included an economist and a public-opinion pollster. The team has sifted through millions of pages of records and sat through hundreds of hours of depositions and hearings in other Enron cases, looking to glean any nugget that could work to their advantage.

Kathryn Ruemmler, deputy director of the Justice Department's Enron Task Force, declined to comment on the defense's spending or other aspects of the case.

[Daniel Petrocelli]

Mr. Petrocelli, a partner at Los Angeles-based O'Melveny & Myers LLP, argues that the scope of Enron's operations and the breadth of the criminal charges against Mr. Skilling require an unprecedented defense effort. Enron, whose peak revenue reached $100 billion a year, collapsed into bankruptcy in December 2001. Mr. Skilling was indicted in February 2004, and the charges include insider trading.

Mr. Petrocelli says corporations have a lot at stake in Mr. Skilling's defense. The lawyer seeks to prove that the alleged crimes were actually commonplace and legitimate business practices, used for such routine purposes as managing cash flow and hedging against losses on investments. "This is probably the most important case in business history," says Mr. Petrocelli.

Adds Mr. Skilling: "I believe strongly that this is a business case. I don't believe that I'm involved in a criminal case."

While some 30 other people have been criminally charged in connection with Enron, Messrs. Lay and Skilling have long been the prime targets. The two men were the public faces of Enron, the only people to hold the chief executive's post and, according to the government, the two leaders of an elaborate scheme to hide the company's mounting financial problems from the public. Though officially No. 2 at the company for much of the period in dispute, Mr. Skilling was widely viewed as the man most responsible for building and running the Enron colossus.

Both defendants chose lawyers who mirrored their own personalities. Mr. Lay's lawyer, Mr. Ramsey, is a veteran Houston criminal attorney with a folksy demeanor that masks a shrewd and tough mind, say people who know him. In 2003, he helped win the acquittal of Robert Durst, scion of a wealthy New York real-estate family, on a charge of murdering and dismembering a man. Mr. Durst claimed self-defense.

Mr. Petrocelli, like his client, is smart, intense, and willing to argue over even small points. "I value passion probably more than any other attribute," says Mr. Skilling, adding that he was impressed by Mr. Petrocelli's experience in business cases. Mr. Skilling's team also includes two lawyers, Ron Woods and Mark Holscher, with criminal-law experience and another business litigator, Randy Oppenheimer.

Around the time of Enron's collapse, Mr. Skilling hired O'Melveny & Myers to help him with the wave of government investigations and shareholder lawsuits that were springing up. Mr. Petrocelli says he had nothing to do with the case -- and paid little attention to the Enron scandal -- until just before Mr. Skilling's indictment, when colleagues brought him into the matter. He says that at his first meeting with Mr. Skilling he noted he wasn't a criminal lawyer. The client replied: "Great, I'm not a criminal."

[Going to Court]

Mr. Petrocelli has pushed himself into unfamiliar territory before. Working as an auditor at a bank in Los Angeles after college -- a job he didn't like much -- he enrolled in a night law school and graduated first in his class. After joining a small Los Angeles law firm as a litigator, his profile skyrocketed in 1995 when he got involved in a suit related to the O.J. Simpson case.

Mr. Simpson had just been acquitted in the murders of his ex-wife and her friend, Ron Goldman. A business client of Mr. Petrocelli's helped introduce him to Fred Goldman, Ron's father, who was looking to sue Mr. Simpson. Fred Goldman recalls being impressed by Mr. Petrocelli's record as a litigator and his candor. "He was very upfront and honest," says Mr. Goldman. "He said that he had never done a suit like this before."

In Mr. Goldman's civil suit for wrongful death, where the burden of proof was lower than in a criminal trial, the jury awarded a $33.5 million judgment against Mr. Simpson. Mr. Petrocelli garnered a bonanza of press attention, a $2 million advance for a book called "Triumph of Justice" and eventually an offer to become a partner at O'Melveny, one of the biggest law firms in Los Angeles.

In his Simpson book, Mr. Petrocelli says his motto for the case was "less is more." Unlike the Simpson criminal trial, which meandered on for months, Mr. Petrocelli wanted to keep his case against the former football star relatively short, simple and tightly focused on the two murders.

Same Motto

Today, the Enron prosecutors have essentially the same motto against Mr. Petrocelli's current client. Prosecutors long worried that the financial details of the case could leave jurors bored, befuddled and unwilling to convict anyone. But the government hopes a recent guilty plea by Messrs. Skilling and Lay's co-defendant, former Chief Accounting Officer Richard Causey, will simplify the case and reduce the need to get into accounting arcana.

The government wants to persuade jurors that the case is simply about two rich and powerful men lying to protect their troubled business empire. Mr. Petrocelli's task is to show that it wasn't so simple. The matters at the heart of the government's indictment involve sophisticated accounting and financial decisions that were fully vetted by Enron's outside lawyers and auditors, says Mr. Petrocelli.

Case in point: Enron's decision in early 2001 to move part of its highly touted retail-electricity business under the umbrella of its much larger wholesale-energy operation. The indictment alleges that the move was designed to hide hundreds of millions of dollars in losses at the retail unit. Not so, says Mr. Petrocelli. He calls the move an ordinary reorganization to eliminate duplication and improve efficiency. He also disputes that there were losses to be hidden. Plus, he says, Enron's outside auditors approved the shuffle.

The lawyer has lined up more than a half-dozen expert witnesses covering the major aspects of the case. The indictment contends that Mr. Skilling grossed nearly $63 million from Enron stock sales in 2000 and 2001 while holding "material, nonpublic information" about the company's troubles. An expert stands ready to dispute that and to compare Mr. Skilling's trading to senior executives at other big companies, says a court filing.

Another expert is ready to dig into the special-purpose entities -- off-balance-sheet vehicles that the government says Enron used to hide losses. The defense is expected to argue that Enron's use of the entities met all necessary accounting and legal criteria.

Still another expert has been enlisted to go head-to-head with the government over Enron's dealings with outside partnerships run by its former chief financial officer, Andrew Fastow, who has pleaded guilty and is expected to be a major government witness. The government contends that Mr. Skilling and others used the Fastow partnerships to manipulate Enron's results.

Prosecutors have objected to the defense's planned expert barrage on various grounds, including the argument that much of their testimony would be irrelevant to the specific charges. Judge Lake has yet to rule on the dispute.

Pretrial Skirmishing

Mr. Petrocelli has already called on experts in the pretrial skirmishing. He requested that Judge Lake move the trial from Houston, Enron's hometown, because of the negative feelings and news coverage here. A boxful of documents filed in support of the motion included a public-opinion poll, taken in Houston and three other cities, and an analysis of local news coverage in those cities purporting to show that Messrs. Skilling and Lay couldn't get a fair trial in Houston.

[Kenneth Lay]

A professor of sociology, Rice University's Stephen L. Klineberg, submitted a paper supporting the motion. Prof. Klineberg, who specializes in the study of community attitudes, spoke of the "symbolic importance" of Enron's rise and fall to Houston's collective psyche. Meanwhile, an economist wrote that Houston jurors might want to convict Messrs. Skilling and Lay so as to seize their wealth for former Enron employees and shareholders.

Mr. Lay's defense team also asked to move the trial -- in a two-page document that expressed support for Mr. Skilling's voluminous filing. Judge Lake turned them both down. The defense for both men recently renewed the request with the judge following Mr. Causey's guilty plea.

Mr. Petrocelli concedes that the judge has turned down most of his side's major pretrial motions. "I am very disappointed in our lack of progress," he says, while calling the filings necessary. Even the rejected motions, observers say, serve some purpose. They could help Mr. Skilling in an appeal if he is convicted, and they keep the government busy responding.

As the trial nears, Mr. Petrocelli, a New Jersey native, is adding some local touches. He now sports a pair of cowboy boots and makes an occasional stab at a Texas twang. During a recent breakfast meeting, while showing off his boots, he pointed a pugnacious finger and proclaimed, "I'm now a full-fledged Houstonian and I'm not leavin' town until Jeff Skilling is a free man."

Write to John R. Emshwiller at john.emshwiller@wsj.com1

  URL for this article:
http://online.wsj.com/article/SB113772974804651717.html

  Hyperlinks in this Article:
(1) mailto:john.emshwiller@wsj.com
(2) javascript:window.open('http://online.wsj.com/documents/info-frmiss.html','framingtheissue','toolbar=no,scrollbars=no,location=no,width=790,height=607,left=20,top=30');void('');
(3) http://online.wsj.com/article/SB113578577739433046.html
(4) http://news.corporate.findlaw.com/legalnews/lit/enron/index.html
(5) http://www.findlaw.com/
(6) http://online.wsj.com/page/2_1040.html
Copyright 2006 Dow Jones & Company, Inc. All Rights Reserved
This copy is for your personal, non-commercial use only. Distribution and use of this material are governed by our Subscriber Agreement and by copyright law. For non-personal use or to order multiple copies, please contact Dow Jones Reprints at 1-800-843-0008 or visit http://www.djreprints.com/.