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July 12, 2004

More on the sad case of Jamie Olis

This LA Times article is the best analysis that I have seen to date regarding what occurred in the sad case of former mid-level Dynegy accountant Jamie Olis that resulted in the absurd 24 year sentence for Mr. Olis.

In November, 2003, a Houston jury found Mr. Olis guilty of helping cook the books at Dynegy, a Houston-based pipeline company that tracked Enron's course into online power trading before that entire industry went bust as a result of Enron's collapse. Mr. Olis was convicted of a battery of charges -- conspiracy, securities fraud, mail fraud and wire fraud -- related to an accounting scheme called Project Alpha, which attempted to mask $300 million of debt as revenue.

U.S. District Judge Sim Lake -- who is presently handling the criminal case against former Enron chief honchos Kenneth Lay, Jeffrey Skilling and Richard Causey -- handled Mr. Olis' sentencing. Under the sentencing guidelines, several factors -- including the skills required to perpetrate an accounting sleight-of-hand, the number of victims and a defendant's criminal history -- contribute to the length of a prison term for a white-collar criminal. However, the most significant factor in determining a sentence in a corporate fraud case is the monetary loss and -- as all business litigators know -- proving financial loss is far from an exact science.

Indeed, even the government expert on financial loss upon whom Judge Lake primarily relied acknowledges that he did not testify that Project Alpha caused the amount of monetary loss that Judge Lake used in sentencing Mr. Olis:

At Olis' sentencing, Lake put the loss at a minimum of $105 million. He based that finding on his view of losses suffered by the University of California, a major Dynegy shareholder and lead plaintiff in a class-action lawsuit against the company.

During the trial, Jeffrey Heil, a former university investment official, testified that the UC system had lost a little more than $100 million on its Dynegy investment.

But in a recent interview, Heil made clear that he was not sure the punishment meted out to Olis was fair, considering the much lighter sentences given to senior corporate officers who have cut plea agreements in other cases.

"This doesn't make a lot of sense," said Heil, who served as UC's co-head of investments until January 2003.

Yet Heil, who now works for the Doris Duke Charitable Foundation in New York, acknowledged in the interview that he couldn't place a dollar value on the UC losses tied specifically to Project Alpha.

It was not a number he was asked to single out at trial.

"To be truthful," he said, "I wouldn't have known the figure."

Notably, Heil never testified that Project Alpha cost the university system more than $100 million. Rather, he told the court that UC lost that amount during its overall period of owning Dynegy stock in 2001 and 2002, a time when the shares dropped for any number of reasons: the market-rocking Sept. 11, 2001, terrorist attacks; Enron's spectacular collapse, which dragged down the whole energy sector; Dynegy's ill-fated attempt to acquire Enron; and the California energy crisis, which raised fears of a broad regulatory clampdown.

Consistent with the Justice Department's current penchant for criminalizing business, the Olis prosecutors actually attempted to prove that public disclosure of Project Alpha caused a much greater loss:

The government urged Lake to figure investors' losses at more than $500 million -- and perhaps twice that amount -- based on the hit taken by all shareholders, not just the university. Prosecutors submitted a consultant study that considered the entire decline in Dynegy's market value and attempted to screen out factors unrelated to Project Alpha.
The defense countered that it was impossible to accurately separate the losses tied to the fraud, given the array of pressures bearing down on Dynegy.

In the end, Lake sought to simplify the matter by focusing on UC's investment alone.

Meanwhile, in the wake of the Supreme Court's recent Blakely decision, Houston-based criminal defense lawyer David Gerger has filed a motion asking for his client to be released pending appeal because, lacking the jury's endorsement of the $100-million-plus loss that the Blakely decision appears to require, Olis' sentence should be no longer than six months.

Posted by Tom at July 12, 2004 5:46 AM |

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