It’s been almost 21 months since Enron declared bankruptcy. Amid ongoing investigations by the Justice Department and the SEC, more than a dozen former Enron employees have been indicted but none has gone to jail yet, and neither Ken Lay nor Jeff Skilling has been charged with any crime.
So it seemed especially dramatic when, in late July, J.P. Morgan Chase and Citigroup agreed to pay a combined $286 million to settle charges with the SEC and the Manhattan district attorney over their “facilitation of the Enron fraud,” as D.A. Robert Morgenthau put it.
In truth, the banks got off easy. Neither Chase nor Citi admitted guilt, and both the firms and individual employees appear to have escaped criminal charges.
The banks weren’t just at the edges of the Enron deception but central to it. Without Citi and Chase, Enron wouldn’t have had enough cash to keep itself going, much less dazzle Wall Street the way it did. In the decade before Enron collapsed, the two banks helped it obtain some $9 billion, which was, in substance, actually debt. But thanks to a complicated sleight of hand known as a “prepay,” Enron was able to record the proceeds on its financial statements as money generated by its operations.
The deceptive nature of those transactions—and the dangerous path they set Enron on—was no secret to either Enron insiders or their bankers. The bankers openly discussed their role in disguising Enron debt.
One problem the government faced is that the banks are so big and important that the feds didn’t want to risk the serious damage that a criminal prosecution would do to innocent employees and shareholders (think Arthur Andersen). And only a handful of employees at each bank worked on Enron.
It’s this rules-based, rather than ethically grounded, way of thinking that regulators hope to change.
The banks aren’t home free just yet. Citi and Chase are Enron’s two biggest creditors, with claims totaling over $4 billion. The bankruptcy court examiner argues that in light of their conduct, their claims—including debt secured by Enron’s still viable pipelines—could be subordinated to those of other creditors. And there’s still a multibillion-dollar civil suit in which Chase and Citi are the defendants with the deepest pockets.