Diposition of Ken Lay's Wealth In Legal Limbo
Disposition of Ken Lay's wealth in legal limbo
By Greg Farrell, USA TODAY
http://biz.yahoo.com/usat/060706/13630131.html?.v=2
After his death from a heart attack early Wednesday morning, it is nearly certain that former Enron chairman Ken Lay's criminal conviction will be vacated. But the fate of his wealth - which the government had sought in a forfeiture action last week - is up in the air.
"You can't have a criminal case without the criminal, and the criminal's gone," says Sam Buell, a former Enron Task Force prosecutor who now teaches law at George Washington University. "That means there's no more criminal forfeiture" of assets, he says.
But even if government prosecutors can no longer follow through on their motion to collect more than $43 million from Lay, that doesn't mean that plaintiffs' lawyers or attorneys from the Securities and Exchange Commission can't go after his wealth.
"Criminal forfeiture takes place only if there's a conviction," says Richard Troberman, a Seattle attorney who specializes in asset forfeiture cases. "I don't think Mr. Lay's death resolves one way or another whether the government will get its hands on his property."
SEC spokesman John Nester says the commission's civil lawsuit against Lay won't proceed until all appeals by Jeff Skilling, Lay's co-defendant in the Enron fraud trial, are exhausted. At that point, he says, "if there are any assets left, we would expect to go after them."
Houston lawyer Thomas Ajamie says that for plaintiffs' lawyers, "It's a little easier to get at that money now that he's deceased, because the government's not going to go after it."
Trey Davis, a spokesman for the University of California Board of Regents, which is the lead plaintiff in the major class-action lawsuit that grew out of Enron's collapse into bankruptcy, said, "We have not yet had a chance to consider the question of pursuing Mr. Lay's remaining assets."
To some extent, Lay's assets could turn out to be a moot point, given the legal fees the former CEO racked up at trial earlier this year.
Federal prosecutors accused Lay and Skilling of lying to investors about Enron's true financial condition in 2000 and 2001. The case went to trial in January. Following a five-month legal battle, a Houston jury convicted the former CEOs of conspiracy and securities fraud. The men were scheduled to be sentenced to prison terms on Oct. 23.
But Lay's death changes his legal status. His lawyers can now move to have the conviction vacated, a motion that has been supported in the 5th Circuit Court of Appeals, which controls the Houston court.
On Thursday, Lay's lead attorney, Mike Ramsey, said it was too early to comment on such matters. Prosecutors from the Enron Task Force, who would not comment on the case, indicated only that the next move was up to Lay's legal team. Ramsey is expected to ask for Lay's conviction and indictment to be erased from the record in the next few days. One question that has yet to be resolved is how much money Lay still had at the time of his death. At trial, he testified that he had been wiped out by Enron's collapse and that he was a net debtor to the tune of $250,000. But in their forfeiture filing last week, prosecutors contended that Lay's half of his luxury condominium in Houston was worth more than $2 million, and that he had $6 million in a Goldman Sachs investment fund.
