Collapse of Enron; Greater public scrutiny on corporate governance issues
The story of Enron ends with a spectacular crash and massive bankruptcy. Once a Wall Street darling and one of the world’s largest companies, Enron saw their shares tumble from a high of $90.75 to $0.26 in a matter of months. The scale of their perversion of accounting rules was massive and done so deftly that even regulators didn’t catch on to their criminal activity until the very end. In hindsight, had investors and regulators assessed their activities through a governance lens, perhaps some of the outcomes would have been different.
Had Enron had strong corporate governance rules and oversight many of the activities that led to their undoing would either never have been undertaken in the first place or may have been discovered with enough time to take corrective action. Not only did Enron not have any meaningful corporate governance in place, they also engaged in outright deceptive accounting practices and in May of 2006, two of their executives, Kenneth Lay and Jeffrey Skilling were convicted of fraud and conspiracy.
What were the signs and signals that were missed at Enron and how can an investor evaluate companies through a corporate governance lens to help ensure that the kinds of activities, that were prevalent at Enron, aren’t lurking behind the scenes at companies today?
First, in the wake of the Enron and other corporate scandals, in 2002 congress passed the Sarbanes-Oxley Act, which strengthened many of the rules that Enron had been manipulating and increased the consequences of filing false financial statements. Also, the Financial Accounting Standards Board (FASB) made some changes in the wake of the scandal to help ensure more consistent accounting practices. So some regulatory accountability has been put in place, but companies still have a great deal of discretion when it comes to corporate governance.
Board of Directors
An active, independent and professionally qualified Board is critical to effective corporate governance. Enron did not separate the CEO and Chairman of the Board role, they were not particularly diverse, with only one woman out of seventeen seats. Furthermore, they had several industry insiders and politicians who did not act consistently and aggressively in the company’s best interests. In one particularly alarming example from 1999, the Board decided to waive Enron’s Code of Ethics so that Andrew Fastow, the CFO, could act as general partner of newly formed partnerships. On the one hand, they did have a Code of Ethics, but suspending it should have set off alarm bells.
Conservative vs. Aggressive Accounting
Accounting is not as black-and-white as we assume. There are many “choices” that companies can make with regard to their books and still be compliant with the appropriate accounting standards. In some cases, companies may try to accelerate revenue and defer expenses to generate more profit, but some companies try to defer revenue and accelerate expenses to generate less profit and thus a lower tax bill. Both are legitimate approaches. A company’s choice of depreciation method is one way that they can exert some control over those factors. Another choice is through their asset valuation method. Book value techniques vs. mark-to-market choices can result in very different outcomes. Although Enron had SEC approval to use mark-to-market valuation, it was abused to Enron’s advantage. In this case, it involved estimating the profits of some of their holding companies and booking those profits as “actual” profits before the profits where actually earned. That is a very aggressive approach and not surprisingly, their poor estimates became significant issues when the profits never materialized.
Risk Management vs. Risk for Profit
The capital markets provide opportunities to raise capital, borrow money and manage risk. It’s a critical function to keep an economy functioning and growing. But take the case of Enron’s futures trading. Many companies use the futures markets as a means to manage risk. A prime example is the airline industry. Many airlines will use the futures market to “lock in” prices for fuel well in advance so that they have predictability of costs. That is a very reasonable way to manage risk. Enron was also trading futures contracts, but was attempting to do so for profit as well as risk management. They even created a trading company to expand into other areas such as electricity, commodities, weather and ironically, default insurance. One has to ask, should an oil and gas transportation company be attempting to trade financial derivatives for profit? Maybe, but there is little evidence that the board or anyone else looked at this activity critically.
There were other examples of malfeasance on the part of Enron, but those three were hiding in plain site. One could have evaluated the Enron Board of Directors and concluded them to not be independent. It would have been much harder to determine if they were consistently acting in the best interests of the company, but that too could have be seen over time in board meeting minutes and board actions.
On the accounting front, since they were so clever at concealing their losses, it would have been very difficult to ascertain the dire straits that they were actually in. However, we did know that by any measure they were using very aggressive accounting techniques and while the use of aggressive accounting techniques is not by itself irresponsible, it is a potential warning sign that can be combined with other factors to paint a larger picture.
Finally, we also knew that Enron was aggressively trading financial derivatives in a newly deregulated market. At the time they were considered innovative. In hindsight we can see that it was an incredibly risky line of business that they were not sufficiently capitalized to undertake.
The corporate governance assessment lens isn’t perfect and won’t catch everything, particularly outright fraud, but it can be used in conjunction with other techniques to help determine the true nature of a company.