What the Dog Saw: And Other Adventures

what are called special-purpose entities, or SPEs.

An SPE works something like this. Your company isn’t doing well; sales are down and you are heavily in debt. If you go to a bank to borrow $100 million, it will probably charge you an extremely high interest rate, if it agrees to lend to you at all. But you’ve got a bundle of oil leases that over the next four or five years are almost certain to bring in $100 million. So you hand them over to a partnership – the SPE – that you have set up with some outside investors. The bank then lends $100 million to the partnership, and the partnership gives the money to you. That bit of financial maneuvering makes a big difference. This kind of transaction did not (at the time) have to be reported in the company’s balance sheet. So a company could raise capital without increasing its indebtedness. And because the bank is almost certain the leases will generate enough money to pay off the loan, it’s willing to lend its money at a much lower interest rate. SPEs have become commonplace in corporate America.

Enron introduced all kinds of twists into the SPE game. It didn’t always put blue- chip assets into the partnerships – like oil leases that would reliably generate income. It sometimes sold off less- than-sterling assets. Nor did it always sell those assets to outsiders, who presumably would raise questions about the value of what they were buying. Enron had its own executives manage these partnerships. And the company would make the deals work – that is, get the partnerships and the banks to play along – by guaranteeing that, if whatever they had to sell declined in value, Enron would make up the difference with its own stock. In other words, Enron didn’t sell parts of itself to an outside entity; it effectively sold parts of itself to itself – a strategy that was not only legally questionable but extraordinarily risky. It was Enron’s tangle of financial obligations to the SPEs that ended up triggering the collapse.

When the prosecution in the Skilling case argued that the company had misled its investors, they were referring, in part, to these SPEs. Enron’s management, the argument went, had an obligation to reveal the extent to which it had staked its financial livelihood on these shadowy side deals. As the Powers Committee, a panel charged with investigating Enron’s demise, noted, the company “failed to achieve a fundamental objective: they did not communicate the essence of the transactions in a sufficiently clear fashion to enable a reader of [Enron’s] financial statements to understand what was going on.” In short, we weren’t told enough.

Here again, though, the lessons of the Enron case aren’t nearly so straightforward. The public became aware of the nature of these SPEs through the reporting of several of Weil’s colleagues at the Wall Street Journal – principally John Emshwiller and Rebecca Smith – starting in the late summer of 2001. And how was Emshwiller tipped off to Enron’s problems? The same way Jonathan Weil and Jim Chanos were: he read what Enron had reported in its own public filings. Here is the description of Emshwiller’s epiphany, as described in Kurt Eichenwald’s Conspiracy of Fools, the definitive history of the Enron debacle. (Note the verb scrounged, which Eichenwald uses to describe how Emshwiller found the relevant Enron documents. What he means by that is downloaded.)

It was section eight, called “Related Party Transactions,” that got John Emshwiller’s juices flowing.

After being assigned to follow the Skilling resignation, Emshwiller had put in a request for an interview, then scrounged up a copy of Enron’s most recent SEC filing in search of any nuggets.

What he found startled him. Words about some partnerships run by an unidentified “senior officer.” Arcane stuff, maybe, but the numbers were huge. Enron reported more than $240 million in revenues in the first six months of the year from its dealings with them.

Enron’s SPEs were, by any measure, evidence of extraordinary recklessness and incompetence. But you can’t blame Enron for covering up the existence of its side deals. It didn’t; it disclosed them. The argument against the company, then, is more accurately that it didn’t tell its investors enough about its SPEs. But what is enough? Enron had some three thousand SPEs, and the paperwork for each one probably ran in excess of a thousand pages. It scarcely would have helped investors if Enron had made all three million pages public. What about an edited version of each deal? Steven Schwarcz, a professor at Duke Law School, recently examined a random sample of twenty SPE disclosure statements from various corporations – that is, summaries of the deals put together for interested parties – and found that on average they ran to forty single-spaced pages. So a summary of Enron’s SPEs would have come to a hundred and twenty thousand single-spaced pages. What about a summary of all those summaries? That’s what the bankruptcy examiner in the Enron case put together, and it took up a thousand pages. Well, then, what about a summary of the summary of the summaries? That’s what the Powers Committee put together. The committee looked only at the “substance of the most significant transactions,” and its accounting still ran to two hundred numbingly complicated pages and, as Schwarcz points out, that was “with the benefit of hindsight and with the assistance of some of the finest legal talent in the nation.”

A puzzle grows simpler with the addition of each new piece of information: if I tell you that Osama bin Laden is hiding in Peshawar, I make the problem of finding him an order of magnitude easier, and if I add that he’s hiding in a neighborhood in the northwest corner of the city, the problem becomes simpler still. But here the rules seem different. According to the Powers report, many on Enron’s board of directors failed to understand “the economic rationale, the consequences, and the risks” of their company’s SPE deals – and the directors sat in meetings where those deals were discussed in detail. In Conspiracy of Fools, Eichenwald convincingly argues that Andrew Fastow, Enron’s chief financial officer, didn’t understand the full economic implications of the deals, either, and he was the one who put them together.

“These were very, very sophisticated, complex transactions,” says Anthony Catanach, who teaches accounting at the Villanova University School of Business and has written extensively on the Enron case. Referring to Enron’s accounting firm, he said, “I’m not even sure any of Arthur Andersen’s field staff at Enron would have been able to understand them, even if it was all in front of them. This is senior-management-type stuff. I spent two months looking at the Powers report, just diagramming it. These deals were really convoluted.”

Enron’s SPEs, it should be noted, would have been this hard to understand even if they were standard issue. SPEs are by nature difficult. A company creates an SPE because it wants to reassure banks about the risks of making a loan. To provide that reassurance, the company gives its lenders and partners very detailed information about a specific portion of its business. And the more certainty a company creates for the lender – the more guarantees and safeguards and explanations it writes into the deal – the less comprehensible the transaction becomes to outsiders. Schwarcz writes that Enron’s disclosure was “necessarily imperfect.” You can try to make financial transactions understandable by simplifying them, in which case you run the risk of smoothing over some of their potential risks, or you can try to disclose every potential pitfall, in which case you’ll make the disclosure so unwieldy that no one will be able to understand it. To Schwarcz, all Enron proves is that in an age of increasing financial complexity, the “disclosure paradigm” – the idea that the more a company tells us about its business, the better off we are – has become an anachronism.

5.

During the summer of 1943, Nazi propaganda broadcasts boasted that the German military had developed a devastating “super weapon.” Immediately, the Allied intelligence services went to work. Spies confirmed that the Germans had built a secret weapons factory. Aerial photographs taken over northern France showed a strange new concrete installation pointed in the direction of England. The Allies were worried. Bombing missions were sent to try to disrupt the mysterious operation, and plans were drawn up to deal with the prospect of devastating new attacks on English cities. Nobody was sure, though, whether the weapon was real. There seemed to be weapons factories there, but it wasn’t evident what was happening inside them. And there was a launching pad in northern France, but it might have been just a decoy, designed to distract the Allies from bombing real targets. The German secret weapon was a puzzle, and the Allies didn’t have enough information to solve it. There was another way to think about the problem, though, which ultimately proved far more useful: treat the German secret weapon as a mystery.

The mystery solvers of the Second World War were small groups of analysts whose job was to listen to the overseas and domestic propaganda broadcasts of Japan and Germany. The British outfit had been around since shortly before the First World War and was run by the BBC. The American operation was known as the Screwball