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September 20, 2005 | |||
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Tyco Figures Will Be Jailed at Least 7 Years Judge
Orders Kozlowski, Swartz
To Also Pay Back $240 Million; CEO's 'Kleptocratic Management' By MARK
MAREMONT NEW YORK -- In an ignominious end to their once-glittering careers, Tyco International Ltd.'s two former top executives were led away from a Manhattan courtroom with their hands cuffed behind their backs, after a New York state judge sentenced them to serve 8 1/3 to 25 years in prison for looting their former company. The lengthy prison sentences, although less than the 15-to-30-year maximum that could have been imposed, are the latest example of relatively harsh punishment being meted out to top executives in the recent wave of corporate-fraud trials. The two men were ordered to pay fines and restitution totaling about $240 million.
L. Dennis Kozlowski, Tyco's former chief executive, and Mark H. Swartz, the company's former finance chief, each were convicted in June of 22 criminal charges related to looting their former employer of more than $150 million. The pair had once been among the most powerful and best-paid executives at an American company, helping build Tyco into a conglomerate with $36 billion in annual revenue. Tyco has been under new management since mid-2002. Under New York state law, they will have to serve nearly seven years at minimum: specifically, at least six years, 11 months and nine days before being eligible for parole, subject to good behavior and other factors. Both defendants have said they will appeal. Mr. Kozlowski's lead attorney, Stephen Kaufman, said immediately after the sentencing hearing that he will be applying for bail for his client pending appeal. Charles Stillman, the lead attorney for Mr. Swartz, said he will be "pursuing appropriate remedies for Mark's situation." In New York, defendants can choose to bring bail applications before any judge, and often try to choose judges known for their leniency. In New York, inmates with more than six years to serve until they are eligible for parole are usually sent to one of the state's maximum-security prisons, which house 22,000 mostly violent offenders, said Linda Foglia, a spokeswoman for the New York State Department of Correctional Services. Prisoners in such facilities are housed in cells, and work six hours a day at tasks like sweeping, painting, or working in the library, she said, adding that inmates generally are paid $1.05 a day. Separately, Tyco is close to an agreement to pay $50 million to settle Securities and Exchange Commission fraud charges related to accounting misdeeds during the period when Messrs. Kozlowski and Swartz were in charge, according to a person familiar with the matter. Lawyers at yesterday's sentencing hearing first revealed the likely SEC charges, with a prosecutor saying the SEC staff was recommending that Tyco be charged with inflating its income by about $1 billion.
During two high-profile criminal trials -- the first ended in 2004 in a mistrial -- prosecutors showed how Tyco had spent more than $30 million on a New York apartment for Mr. Kozlowski, and helped foot the bill for a lavish birthday party for the former Tyco chief's wife on the Italian island of Sardinia. Although the defendants claimed the money taken from Tyco had been authorized by the company's board, prosecutors argued that not a single piece of paper backed up that contention, and the company's directors testified they were kept in the dark. Mr. Kozlowski, 58 years old, briefly glanced back at his family as he was being led out of the courtroom. Mr. Swartz, 45, smiled wanly at one of the court officers as he was led out. In imposing the sentences, Justice Michael Obus, of the trial-level New York State Supreme Court, stressed that he wasn't sending a message about corporate fraud in general, and merely was reflecting the appropriate punishment for the serious crimes for which the two former Tyco executives were convicted. Perhaps mindful that New York prison officials generally house those sentenced to more than six years in maximum-security facilities, Justice Obus said twice yesterday that he didn't view Messrs. Kozlowski and Swartz as security risks. In imposing financial penalties, Justice Obus ordered that Mr. Kozlowski repay about $97 million to Tyco -- the bulk of the money he was convicted of stealing -- and pay an additional $70 million in fines. Mr. Swartz was ordered to repay about $38 million, plus $35 million in fines. He had already repaid $12.5 million to Tyco. Although Justice Obus had the option of holding additional hearings on extra penalties related to the securities-fraud convictions, he opted not to do so, suggesting that civil courts could sort out the issue. Messrs. Kozlowski and Swartz are defendants in civil suits filed by Tyco and in a class-action securities lawsuit by the company's shareholders. The criminal convictions are likely to make it easier for the plaintiffs to win those suits. The defendants' considerable assets, which likely total much more than they were ordered to pay yesterday, have been frozen by the courts for more than three years. The sentences were less harsh than those given to some other former chief executives by federal courts. Bernard J. Ebbers, the former chief executive of WorldCom Inc., now MCI Inc., received a 25-year sentence after being convicted of masterminding a massive accounting fraud. Adelphia Communications Corp. founder John Rigas, who is 80 years old, was sentenced to 15 years. Both are out on bail while they appeal. Before sentencing, Mr. Kozlowski addressed the court, asking the judge to be "as lenient as possible" and to consider the more than 130 letters submitted to the court by his supporters as a more "accurate" portrait of his life. Mr. Kozlowski's attorney stressed his charitable works, among other things.
Mr. Swartz, who was derided by prosecutors before sentencing as a perjurer for his testimony during both trials, told the judge that he had "always held myself to a high standard of integrity and honesty" and said every word of his own testimony "was the complete and honest truth." He asked to be returned to his family "as soon as possible" because his family life was a matter of "vital importance." In asking for the maximum sentence, Assistant District Attorney Owen Heimer said Mr. Kozlowski was found guilty of theft and securities fraud on an "unprecedented scale," and made Tyco into a "symbol of kleptocratic management." He quoted extensively from a letter sent some years ago by Mr. Kozlowski to a Texas court, recommending a "maximum sentence" for a low-level Tyco employee convicted of embezzling less than $1 million from the company. Ann Donnelly, another prosecutor, urged the judge to impose a harsh sentence on Mr. Swartz, whom she said was "in large part the architect of this conspiracy" and had "lied to the investing public ... over and over again just so he could enrich himself." Ms. Foglia said prisoners generally spend several weeks in temporary facilities, and are assigned to prisons based on a number of factors, including length of term, age, health and whether they request protective custody. She said New York has a maximum-security facility near the Canadian border that houses about 250 prisoners, including a former judge, who "are unable to be incarcerated in a general population." A Tyco spokesman, David Polk, said the company had been discussing a proposed accounting settlement with the SEC for some time. The "proposed allegations relate to Tyco's historical accounting," Mr. Polk said. "Tyco's current financial statements are not at issue." The company restated its results in 2003 going back a number of years, and has previously taken a $50 million charge to cover penalties that might result from the SEC's investigation. The company said a further restatement wasn't part of its talks with the SEC. ---- Deborah Solomon in Washington and Charles Forelle in Boston contributed to this article. Write to Mark Maremont at mark.maremont@wsj.com12 | |||||||||||||
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