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Enron Briefing

Rotman School of Management, March 19, 2002. 2. Agenda. BackgroundEnronAccounting Disclosure ManipulationEnron ProblemsStructures, activities and disclosuresControl and cultureLessonsGovernanceAccounting standards and professionDirector's BehaviourQuestions. Rotman School of Management, March 19, 2002.

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Enron Briefing

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    1. Enron Briefing Clarkson Centre for Business Ethics & Board Effectiveness—CC(BE)2 & Executive Programs Rotman School of Management March 19, 2002

    2. Rotman School of Management, March 19, 2002 2 Agenda Background Enron Accounting Disclosure Manipulation Enron Problems Structures, activities and disclosures Control and culture Lessons Governance Accounting standards and profession Director’s Behaviour Questions

    3. Rotman School of Management, March 19, 2002 3 Rotman Briefing Team Ramy Elitzur – Accounting, Audit Former Director, MBA Program, elitzur@rotman.utoronto.ca Irene Wiecek – Accounting, Audit Associate Director, MMPA, wiecek@rotman.utoronto.ca Eric Kirzner – Finance, Governance Director, Market Regulation Services, + kirzner@rotman.utoronto.ca Len Brooks – Governance, Ethics, Accounting, Audit Exec. Dir. , The Clarkson Centre for Business Ethics & Board Effectiveness Director , Master of Management & Professional Accounting (MMPA) Director, Diploma in Investigative & Forensic Accounting (DIFA) brooks@rotman.utoronto.ca

    4. Rotman School of Management, March 19, 2002 4 The Enron Affair Management was: out of control, and engaged in self-dealing manipulating transactions & financial reports Company imploded - Chap. 11 in Dec. 2001 Investors misled, pensions lost Executives plead the 5th, poor memory, ignorance, incompetence Outrage Auditor savaged, profession to be changed

    5. Rotman School of Management, March 19, 2002 5 Overview of Key Problems Governance failure at the Board level Too much trust Incompetence - awareness and/or understanding of role , control & reporting systems Lack of motivation, conflicts of interest Dishonest management, conflicts of interest Culture of deception, self-interest Manipulation of accounting and disclosure Poor standard setting Auditor deficiencies Regulatory short-sightedness

    6. Rotman School of Management, March 19, 2002 6 Enron Stock Chart

    7. Rotman School of Management, March 19, 2002 7 Enron’s Business (10K-2000) Transportation and distribution Wholesale services Commodity sales & services, risk management products, plants, etc Retail energy services - gas, electricity Broadband services Nationwide fiber-optic network - build, market, etc. Corporate and other operation of water, renewable energy, and clean fuels plants plus other corporate activities

    8. Rotman School of Management, March 19, 2002 8 Enron’s Income (IBIT): Income Before Interest, Minority Interest and Income Taxes 2000 1999 1998 Transport & distribution ($ mil.) Trans. Services 391 380 351 Portland General 341 305 286 Wholesale Services 2,260 1,317 968 Retail Energy Services 165 (68) (119) Broadband Services (60) Exploration & prod. - 65 128 Corporate and other (615) (4) (32) IBIT 2,482 1,995 1,582

    9. Rotman School of Management, March 19, 2002 9 Enron’s Wholesale Services …creation of networks involving selective asset ownership, contractual access to third-party assets and market-making activities. 10K p.36. …uses portfolio and risk management disciplines, including offsetting or hedging transactions, to manage exposures to market price movements (commodities, interest rates, foreign currencies and equities). 10K p.37. … sells interests in certain investments and other assets to improve liquidity and overall return, 10K p.37

    10. Rotman School of Management, March 19, 2002 10 Enron’s Financial Data 2000 1999 1998 Revenues (in Billions) 100.8 40.1 31.3 Operating income (Millions) 1,953 802 1,378 IBIT 2,482 1,995 1,582 Net Income before Cumulative Accounting Changes 979 1,024 703 Net Income 979 893 703 EPS (in dollars) - basic 1.22 1.17 1.07 - diluted 1.12 1.10 1.01

    11. Rotman School of Management, March 19, 2002 11 Enron’s Financial Data 2000 1999 Current assets (Billions) 30.4 7.3 Investments, other 23.4 15.4 Property, plant, equip, net 11.7 10.7 Total Assets 65.5 33.4 Current liabilities 28.4 6.8 Long-term Debt 8.6 7.2 Deferred credits and other 13.8 6.5 Shareholders’ Equity 11.5 9.6 Total Liab. & Shareholders’ Equity 65.5 33.4

    12. Rotman School of Management, March 19, 2002 12 Enron’s Changing Risk Profile Early By Risk 1990’s 2000 Level Pipelines, distribution networks ? ? Low Retail energy ? ? Low Power generation ? ? Low Oil and gas exploration ? ? Med. Alternative energy ? M/H Hedging transactions ? High Commodity trading transactions ? High Broadband optical fiber networks ? V. High Related party transact. (SPEs/Partnerships) ? ???

    13. Rotman School of Management, March 19, 2002 13 Corporate Governance Role of the Board of Directors - traditional strategic objectives - set or approve company policies and procedures: set or approve ensure dissemination and compliance laws, regulations, & expectations of society ensure monitoring and compliance act as ethical conscience (Dey Report & CICA)

    14. Rotman School of Management, March 19, 2002 14 Enron’s Governance Failure Begins 1997 - Board suspends code of conduct to deal with an SPE (JEDI/Chewco) emergency (alternative controls considered …not implemented) Can’t find outside investor before year-end Non-consolidation tests not satisfied: Outside investor - 3%investment at risk, control. Fastow (CFO) has Koppers - who reports to Fastow - appointed to run/invest/control SPE Realization that guard is down/can be controlled

    15. Rotman School of Management, March 19, 2002 15 Enron’s Governance Structure

    16. Rotman School of Management, March 19, 2002 16 Governance Failure Allows Fastow to control SPE transactions: Sales of assets at inflated prices (False gains) False hedging of losses on Enron investments (Falsely keeps losses off Enron Income Stat.) Exorbitant payments to Fastow & helpers Hiding of SPE debt ultimately to be borne by Enron Fastow to create more SPEs (LJMs…) Manipulation of accounting disclosure

    17. Rotman School of Management, March 19, 2002 17 Partial Impact Payments to Fastow & helpers Invest._ Return Other Fastow $25,000 $4.5 mil in 2 mo. $30 mil+stock options+ Koppers 125,000 10 mil (incl. $2 mil in fees friend) 2 others 5,800 1 mil Manipulated transactions in Q3 & Q4, 1999 Asset sales, plus 1 hedge $229 profit of $570 before tax and 549 after tax (~50%)

    18. Rotman School of Management, March 19, 2002 18 Manipulation of Accounting Disclosure A Backgrounder The Accounting Art of War By Ramy Elitzur

    19. Rotman School of Management, March 19, 2002 19 The Accounting Art of War “A Strategy of Positioning evades Reality and confronts through Illusion.” The Art of War by Sun Tzu

    20. Rotman School of Management, March 19, 2002 20 The Accounting Art of War “Appearance and intention are fundamental to the Art of War. Appearance and intention mean the strategic use of ploys, the use of falsehoods to gain what is real.” The Book of Family Traditions on The Art of War, Yagyu Munenori

    21. Rotman School of Management, March 19, 2002 21 The Accounting Art of War The accounting art of war incorporates the entire menu of reporting strategies that management employs to manipulate financial statements. Involves much more than earnings management.

    22. Rotman School of Management, March 19, 2002 22 The Agency Framework Modern corporations have a separation of ownership and management. As such, there is an inherent conflict of interests between shareholders and managers. Mechanisms to alleviate the agency problem: Compensation plan (to create goal congruence between shareholders and managers) Monitoring or auditing, both internal and external.

    23. Rotman School of Management, March 19, 2002 23 The Agency Framework In The Context of Enron The Mechanisms to alleviate the agency problem failed in Enron: The compensation plan: Not only it did not reduce the agency problem but it actually exacerbated it. Monitoring or auditing, both internal and external failed to bring the accounting problems to light.

    24. Rotman School of Management, March 19, 2002 24 Tools in The Accounting Art of War Earnings Management Revenue Manipulation Off-Balance-Sheet Liabilities Sheer Opportunism

    25. Rotman School of Management, March 19, 2002 25 Tools in The Accounting Art of War Earnings Management Companies may want to: Increase reported earnings. Decrease reported earnings. Smooth earnings.

    26. Rotman School of Management, March 19, 2002 26 Earnings Management Merchant (1990) and Merchant and Bruns (1990) find that earnings management is a widespread phenomenon. Furthermore, the same studies surveyed managers and report that, according to these managers, earnings management is an acceptable practice.

    27. Rotman School of Management, March 19, 2002 27 Increasing Reported Earnings Why? This could increase bonus and other compensation.

    28. Rotman School of Management, March 19, 2002 28 Examples Enron Waste Management where the company overstated income from 1992 to 1996 by more than US$ 1 billion. Livent, Inc.

    29. Rotman School of Management, March 19, 2002 29 Income Decreasing Strategy Why? In cases of monopoly because of anti-trust considerations. Regulated utilities. ‘Blood Bath’.

    30. Rotman School of Management, March 19, 2002 30 Example Microsoft The issue of capitalization of software development costs. Does this strategy have a significant impact?

    31. Rotman School of Management, March 19, 2002 31

    32. Rotman School of Management, March 19, 2002 32

    33. Rotman School of Management, March 19, 2002 33 The Accounting Art of War (Cont.) Manipulation of Valuation Companies may want to increase reported revenues. Example: MicroStrategy

    34. Rotman School of Management, March 19, 2002 34 MicroStrategy the Securities and Exchange Commission, when moving to crack down on lax accounting standards, in December 2000 has found that MicroStrategy Inc., an inventory-management software maker, was prematurely recognizing revenue.

    35. Rotman School of Management, March 19, 2002 35 MicroStrategy Stock Price

    36. Rotman School of Management, March 19, 2002 36 Sunbeam A new CEO, "Chainsaw Al" Dunlap, was hired in mid 1996 to turn the company around. A year after he was hired, Al Dunlap Dunlap declared success in turning Sunbeam Corp. around in terms of profits and revenues. It was later found that the revenue growth came from manipulation of revenues.

    37. Rotman School of Management, March 19, 2002 37 Sunbeam (Cont.) The company instituted an "early buy" program for gas grills in the fourth quarter that gave retailers the opportunity to buy grills in November and December of 1997 but not pay until as late as June 1998. The company also started a "bill and hold" program that allowed Sunbeam customers to use its warehouses to store goods that they had bought, but not necessarily paid for.

    38. Rotman School of Management, March 19, 2002 38 Sunbeam (Concluded) Between them, these two programs accounted for a substantial part of Sunbeam's apparent revenue gains in 1997. In essence, these revenues were nothing more than future sales booked now. When this was found out the prices of Sunbeam Corp. shares plunged.

    39. Rotman School of Management, March 19, 2002 39 Other Notable Examples of Revenue Manipulation Rite Aid (inflated revenues in 1998 and 1999 by over US$ 1 billion) HomeStore.com (booked US$ 54 million to US$ 95 million as ad revenue in the first three quarters of 2001 that it never received in cash but as a result of revenue swaps with advertisers for undisclosed goods and services).

    40. Rotman School of Management, March 19, 2002 40 Off-Balance-Sheet Financing Companies may want to omit debt from the balance sheet.

    41. Rotman School of Management, March 19, 2002 41 Example of Off-Balance-Sheet Debt Enron Motivation:Lower cost of debt to finance aggressive acquisition strategy. Special Purpose Entities (SPEs). Debt omitted over $600 million. Financial Instruments. Debt not shown on the balance sheet $1.5-3 billion.

    42. Rotman School of Management, March 19, 2002 42 GE Just recently (March 2002) General Electric Co. reported that it had off-balance-sheet SPEs that held US$56 billion of assets at the end of 2001, up from US$ 41 billion a year earlier.

    43. Rotman School of Management, March 19, 2002 43 Kmart Kmart has long-term lease commitments that had, based on my calculations, a present value around US $5.5 billion in 2000. When added both to the assets and liabilities of Kmart in 2000 it changed the debt to equity ratio from 1.4 to 2.3 and the debt/assets ratio from 58% to 70%.

    44. Rotman School of Management, March 19, 2002 44 Air Canada A similar exercise in Air Canada resulted in an addition of C$ 7.5 billion of assets and liabilities and a jump in the debt/equity ratio from 17.72 to 38.38.

    45. Rotman School of Management, March 19, 2002 45 Adjustment for Off-Balance Sheet Leases - HBC (1999)

    46. Rotman School of Management, March 19, 2002 46 Opportunism Example: Air Canada

    47. Air Canada Q2’01: Revenues hurt by economy, competition

    48. Air Canada Q1’01: Difficult Economic, Cost Environment

    49. Rotman School of Management, March 19, 2002 49 How Fastow/Enron Misused SPEs To manipulate financial reports and siphon off funds to Fastow & helpers until the company imploded. By Irene Wiecek

    50. Rotman School of Management, March 19, 2002 50 Guiding Financial Reporting Principles Economic substance over legal form – portrayal of reality Which assets and liabilities are part of the company? When is a transaction a bona fide transaction? Management intent Arm’s length presumption - party is unrelated and bargaining on its own account – therefore price and terms fairly arrived at. Versus related party transactions – fiduciary responsibilities Transparency – also a fundamental principle of efficient capital markets

    51. Rotman School of Management, March 19, 2002 51 Decision making principles All the relevant information available? Quality of information i.e. based on reality, numbers reliable? Understandable?

    52. Rotman School of Management, March 19, 2002 52 Economic entity concept - extends beyond legal entity Economic Entity Legal Entity Which assets & liabilities are part of the company?

    53. Rotman School of Management, March 19, 2002 53 Economic entity concept Report on resources controlled by the company – where the company has the potential to reap the benefits but is also exposed to the risks Consolidated financial statements recognize that even though there may be separate legal entities, together, they constitute an economic unit

    54. Rotman School of Management, March 19, 2002 54 The Concept of Control Continuing power to determine strategic policies without the cooperation of others Spectrum No control Significant Joint Control Influence Control Related parties

    55. Rotman School of Management, March 19, 2002 55 Control Benchmarks General presumption regarding control Normally – equity ownership >50% - must also prove control exists SPE – U.S. equity investment (at risk) >3% (now 10%), Canada >10% - must also prove control exists

    56. Rotman School of Management, March 19, 2002 56 SPE Primer Consider the following: Demonstrably distinct – cannot be unilaterally dissolved by transferor, outside ownership Restrictions on activities Legal form - may be corporation, partnership or trust

    57. Rotman School of Management, March 19, 2002 57 SPE Primer Business reasons for creating SPE Economic benefits i.e. collateralize assets, share risk, obtain more favourable financing, cash out, Examples - synthetic leases, pools of similar assets (AR, mortgages, investments) Wrong reasons get debt off financial statements, hide losses/risks, generally manipulate financial statements, “P&L protection”

    58. Rotman School of Management, March 19, 2002 58 Enron’s SPEs

    59. Rotman School of Management, March 19, 2002 59 Chewco/JEDI Intent - JEDI Originally formed in 1993 with CalPERs to syndicate investment opportunities. Enron wanted to find another investor in 1997 so that CalPERs would invest in another vehicle. Chewco formed 1997 as SPE Nov 2001 – accounting reviewed and determined to be in error – consolidated retroactively

    60. Rotman School of Management, March 19, 2002 60 Chewco/JEDI Kopper/Dodson Dodson LP/GP Big/Little SONR River $11.4 GP LP $11.4 ENRON Chewco $132 LP Barclays GP $240 JEDI

    61. Rotman School of Management, March 19, 2002 61 Chewco/JEDI

    62. Rotman School of Management, March 19, 2002 62 LJM1/Rhythms Intent – Transfer of risks/provide additional markets Fastow GP – seek outsides investors Formed 1999 - 20 transactions to 2001 Rhythms/Net connections Little market for CS (Enron had large holding). Worried about price risk. Unwinding

    63. Rotman School of Management, March 19, 2002 63 LJM1/Rhythms Fastow LP/GP ERNB/ Campsie LJM Partners Fastow $15 GP GP LP $1 LJM Swap LJM1 Co LP LJM GP Swap Sub

    64. Rotman School of Management, March 19, 2002 64 LJM1/Rhythms 3.4 million CS Enron FV $276 ($168 discounted) ENRON LJM1/Swap Rhythms CS Sub $64 Note $104 Put option on Rhythms CS (Swap to $168 buy Rhythms CS at $56) FV $104

    65. Rotman School of Management, March 19, 2002 65 LJM1/Rhythms

    66. Rotman School of Management, March 19, 2002 66 LJM/Other Issues Selling to LJM assets that it could not sell elsewhere – subsequently repurchased Economic substance? Bona fide transaction? Guarantee against losses At issue – gain recognition

    67. Rotman School of Management, March 19, 2002 67 LJM2/Raptors Intent Syndicate capital investments Hedge Create markets Fastow GP- Formed Oct 1999 Significant contribution to NI $1 billion 3Q 2000 to 3Q 2001 4 Raptors – 2 of which discussed below

    68. Rotman School of Management, March 19, 2002 68 LJM2/Raptors Fastow/Kopper LP/GP 50 Limited Partners LJM2 CMLP $394 GP LP LJM2 $30 LP Talon

    69. Rotman School of Management, March 19, 2002 69 LJM2/Raptor 1/Talon Capitalization and $41 put $350 - 3.4 million CS Enron FV $537 ($350 discounted) $50 million note $41 million premium on put ENRON/ LJM2/Talon Harrier LCC interest $400 million Note Put option on Enron CS – Talon to buy Enron CS @$57.50

    70. Rotman School of Management, March 19, 2002 70 LJM2/Raptors

    71. Rotman School of Management, March 19, 2002 71 LJM2/Raptor 1/Talon Total return swaps Intent to protect Enron against losses on merchant investments Enron pay future gains on investments to Talon Talon pay to Enron future losses on investments Locked in value on Enron’s books

    72. Rotman School of Management, March 19, 2002 72 LJM2/Raptor 1/Talon Total return swaps

    73. Rotman School of Management, March 19, 2002 73 LJM2/Raptor 1/Talon Costless Collars Intent to shore up creditworthiness of Talon If Enron CS fall below $81, Enron pays Talon difference If Enron CS increases above $116, Talon pays Enron difference Costless since premiums equal

    74. Rotman School of Management, March 19, 2002 74 LJM2/Raptor 1/Talon Costless Collars

    75. Rotman School of Management, March 19, 2002 75 LJM2/Raptor 3 Issues TNPC – held shares of the very shares that they were meant to hedge. Not presented to the BOD

    76. Rotman School of Management, March 19, 2002 76 Things to think about Business model – non standard transactions/changing business model Intent - structuring transactions to achieve accounting objective versus economic objective Narrow interpretation of GAAP - the 3% test – rules based versus principles based Complexity – non-standard legal structures Documentation – deal sheets, formal approvals When the legal form becomes more important than the economic substance

    77. Rotman School of Management, March 19, 2002 77 Enron’s Governance Structure Was Short Circuited

    78. Rotman School of Management, March 19, 2002 78 Enron’s Ethical Culture Code suspended, alternate controls ignored Bogus trading floor for visiting analysts Whistleblowers/doubters came forward (to), but Co-chair (Lay) resigned, 32 mil. … suicide? Kaminsky (Fastow) …….. ignored McMahon (Fastow)...transferred …now CFO Sharon Watkins (Lay)… Enron’s law firm found no problem …fox in the chicken coup No protected whistleblower path to the Board Do we need an Ethics Committee?

    79. Rotman School of Management, March 19, 2002 79 New Board Responsibilities Comprehensive Risk Management Broad understanding of business model Financial literacy Guidance & Control framework Focus on corp. culture, ethics & reputation Business ethics…whistleblower protection plan Ethics Risk Management Trust, but challenge, don’t turn away Caremark National Case, trend

    80. Rotman School of Management, March 19, 2002 80 Comprehensive Risk Management requires understanding the business Risk Events Causing Drops of Over 25% Share Value, Percentage of Fortune 1000 companies, 1993-1998 Strategic ……………………………. 58% Customer demand shortfall (24) Competitive pressure (12) M & A Integration problems (7) Mis-aligned products (6) Operational …………….31% Cost overruns (11) Accounting irregularities (7) Management ineffectiveness (7) Supply chain pressures (6) Financial ………..6% [Foreign macro-eco, interest rates ] Hazard …….0% [Lawsuits, natural disasters] Source: Mercer Management Consulting/Institute of Internal Auditors, 2001

    81. Rotman School of Management, March 19, 2002 81 Comprehensive Risk Management includes Ethics Risk Management Ethics Risk Reputation Success Reputation is important Arthur Andersen…………… survival RBC Dominion………reputational capital Tylenol ……………competitive advantage Selling trust and credibility, not pills, …

    82. Rotman School of Management, March 19, 2002 82 Comprehensive Risk Management depends upon the Corporate Ethical Culture Comprehensive Risk Management utilizes both: A. Key risk factor identification & measurement B. Review of key business processes including the ethical culture that underpins process integrity Ethical culture provides guidance for employees about when to adhere to the Code, when actions are not covered in Code, in a grey area, or in a crisis - tools to measure ethical culture do exist Enron’s Board failed to consider any of this! Few corporations do A, fewer do B!

    83. Rotman School of Management, March 19, 2002 83 Audit Committee must Understand key business operations Understand comprehensive risk management model and reports Examine key/large transactions Ensure compliance with good policies Ensure fair presentation Who wants this risk? How much should the members be paid?

    84. Rotman School of Management, March 19, 2002 84 Accounting Standards & Disclosure FASB’s 3% standard was too low … now changed to 10% Need rededication to: fair presentation, not specific rules orientation or pro forma illusions clarity transparency SEC/IASC will be more evident… Can.?

    85. Rotman School of Management, March 19, 2002 85 Audit & Professional Standards SEC rules on non-audit services More emphasis on professional ethics Stronger enforcement/punishment for individual professionals: in accounting/audit firms in corporate clients Is it in the public interest to shut down Arthur Andersen?

    86. Rotman School of Management, March 19, 2002 86 Eric Kirzner: A Director’s Commentary An eye-opening example from my experience My criteria – must be met before I accept a Director’s post. Tradeoffs a Director must understand Process steps for a Director to consider

    87. Rotman School of Management, March 19, 2002 87 Finance, Governance 1. AME HISTORY Listed Montreal Exchange Board: affinity people; friends of management Going Private transaction Independent committee NOBODY: Management; board members understood!   

    88. Rotman School of Management, March 19, 2002 88 Membership Criteria My criteria for serving: 1. I am an expert in the field 2. The other board members: either experts, or knowledgeable and representing key stakeholders union reps on pension plans for example 3. No Cronyism

    89. Rotman School of Management, March 19, 2002 89 Membership Criteria My criteria for serving: 4. Chair is expert, experienced and understands balance between unfettered debate and accomplishments.

    90. Rotman School of Management, March 19, 2002 90 Membership Criteria My criteria for serving: 5. All functions in place Management; internal audit and external audit Independence of internal audit and management Independent directors 50% plus?; public governor proxy Fee for service!

    91. Rotman School of Management, March 19, 2002 91 Membership Criteria My criteria for serving: 6. Committee Structure Governance HR Audit and finance Risk management Independent directors dominate committees?

    92. Rotman School of Management, March 19, 2002 92 Understand Tradeoff Paradigm #1 DIRECTORS TO: “ Act in best interest of…” Company (statutory) OR Shareholders (regulatory) Paradigm #2 Maximization of Shareholder wealth Paradigm #3 Public/ethical responsibility

    93. Rotman School of Management, March 19, 2002 93 Process For Board Member A Model Can you develop checklist of responsibilities Example: meet CDIC guidelines? 2. Committees Audit, HR, finance Appropriate trade-off approval and recommending

    94. Rotman School of Management, March 19, 2002 94 Process 3. Board self-assessment Peer group review Chair review 4. Independent Directors; Public Directors Must understand everything Ultimate sanction of voting with their feet!94

    95. Rotman School of Management, March 19, 2002 95 Comments & Questions The Last Word Ramy Irene Questions

    96. Rotman School of Management, March 19, 2002 96 New Governance Series For directors and senior officers: Director’s Responsibilities Financial literacy Guidance and control systems Ethics risk management Comprehensive risk management

    97. Thank You on behalf of the Clarkson Centre for Business Ethics & Board Effectiveness—CC(BE)2 Executive Programs Rotman School of Management

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