Monthly Archives: July 2006

Lance Berkman is a funny guy

Posted on by
2

LanceBerkman_P35.jpgAmidst the Stros disappointing season, slugger Lance Berkman (42 RCAA/28 HR’s/.403 OBA/.617 SLG/1.020 OPS) is having another outstanding season, slugging his way to production that is second only to the Cardinals’ Albert Pujols in the National League.
In last night’s Stros win over the Reds, Berkman whacked another two yaks, one of which was a 452 foot bomb that landed in the restaurant that overlooks centerfield at Minute Maid Park. Berkman, a happy-go-lucky, life-long Texan who is a genuinely nice fellow, commented after the game on his mighty home run:

“I think the waiter made a nice play.”

Berkman’s career stats are below. In the history of the Stros franchise, only Jeff Bagwell (stats below, also) has had better hitting statistics than Berkman at the same stage of his career. Berkman, who is 30, currently has 331 RCAA for his career and is about ready to overtake Craig Biggio (currently at 352 RCAA for his career) for second place on the Stros career RCAA list. At the completion of the season (1998) that coincided with his 30th birthday, Bags’ RCAA was 431, and Bags tops the Stros career RCAA list at 680.
It’s sometimes easy to overlook, but we have been blessed to have been able to watch in Bidg, Bags and Berkman the three best non-pitcher players in the history of the Houston Astros Baseball Club.

Continue reading →

The Yates verdict

Posted on by
1

andrea yates2.jpgIt took awhile, but the Texas criminal justice finally got it right yesterday in the sad case of Andrea Yates, thanks to an honest and dispassionate jury.
Of course, as noted here earlier, this is a prosecution that never should have been tried once, much less twice. Yates and her attorneys were always willing to cut a deal in which the obviously insane Yates would spend the rest of her life in a tightly-controlled state mental hospital, yet the Harris County District Attorneys office stubbornly refused to provide any meaningful prosecutorial discretion in the case. The result has been a four year saga in which untold millions of dollars of has been spent so that the prosecutors could prove what? That this obviously insane woman just was lucid enough when she killed her children that she should spend the rest of her life in a maximum-security prison rather than a state mental institution?
Yates initially will be sent to a maximum-security hospital, probably North Texas State Hospital in Vernon, and then if doctors determine she is not a danger to herself or others, she later will probably be moved to a medium-security state mental health facility, such as the Rusk State Hospital where she lived for several months pending her retrial. Oh yeah, where she lived before prosecutors insisted that she be detained in the Harris County Jail during her retrial.
Although the Yates defense was successful this time around, there is no real victory here. Yates will spend the rest of her life in a heavily-guarded mental institution and any time she regains even a little bit of lucidity, she will descend back into a deep depression with psychotic features and schizophrenia when she realizes what she did to the children that no one involved in the case disputed that she adored.
One aspect of the case that I’ve not seen reported much in the media is that this trial only involved the deaths of three of the five children that Yates killed, so the Harris County District Attorneys office clearly hedged its bets that it could lose this case when it elected not to prosecute the deaths of the other two Yates children. Thus, it’s possible that the DA’s office could mount another murder case against Yates, although even their bad judgment in pursuing the first case against Yates through two trials does not seem to make that a likely scenario.
The bottom line on this case is that good people afflicted with terrible mental illness are capable of committing horrendous acts during a period of harrowing madness. That’s the reason why insanity is a defense to a murder charge under our criminal justice system, and there is simply no reason to have that defense at all if the state insists upon using its overwhelming prosecutorial power to place obviously insane people such as Andrea Yates in prison — rather than a more humane mental health facility — for the rest of their lives.

Air France competitors, listen up!

Posted on by
1

Air_France_logo3.jpgAir France is right on the law in this recent Fifth Circuit decision (written by Judge Fortunato P. Benavides), but woefully wrong on the public relations front. In not settling the case, Air France has given an enterprising advertising firm for one of Air France’s competitors the basis for an effective “we’d never do this to you” advertising campaign against the airline.
Here’s what happened. Air France charged Edo Mbaba a $520 excess baggage fee for the four extra bags he took on his trip from Houston to Lagos. That was no problem, but when Mbaba flew through Paris, the flight was delayed and he missed his scheduled connection. As a result, he had to spend the night in the terminal and reclaim his baggage.
The next day, when Mbaba went to check his bags with Air France again for his flight to Lagos, Air France inexplicably advised him that he would have to pay another $4,000 in excess baggage fees. Thinking much as I would if confronted with such a demand, Mbaba requested that Air France simply return his luggage to Houston, which prompted the Air France personnel to inform Mbaba that if he didn’t quit griping and pay the four grand fee, they would take his luggage outside and barbecue it. Mbaba paid the fee, but then sued Air France in Texas for breach of contract and other state law claims.
Alas, the U.S. District Court and the Fifth Circuit concluded that Mbabaís claims are preempted by the Warsaw Convention. Nevertheless, here’s hoping that some of Air France’s competitors pick up on the decision and use it in the advertising wars so that the few bucks that Air France saved by stiffing Mbaba becomes an expensive lesson on how not to treat customers. Hat tip to Robert Loblaw for the link to the Fifth Circuit decision.

Harvey Miller takes one on the chin

Posted on by
Reply

Harvey_Miller_Greenhill_&_Co.jpgAs noted in this previous post, former Weil, Gotshal & Manges bankruptcy partner and current Greenhill & Co. investment banker Harvey Miller is arguably the most leader of the movement over the past 30 years to elevate the compensation of corporate reorganization lawyers to levels commensurate with that of other corporate and securities lawyers. In so doing, Miller was not accustomed to losing many disputes over his firm’s fees in big reorganization cases, but — as the Wall Street Journal’s ($) Nathan Koppel reports here — Miller absorbed a hit on his fees as an investment banker earlier this month that could be the largest in the history of US corporate reorganizations.
Based on a July 21 ruling of New York Bankruptcy Judge Robert Drain, Miller’s employer — New York investment bank Greenhill & Co. — must return $4.6 million of the more than $11 million the firm was paid as an adviser to Loral Space & Communications Ltd. in the satellite company’s chapter 11 case. Judge Drain concluded that Greenhill had improperly claimed a bonus for advising Loral in its 2003 bankruptcy and that Greenhill’s retention agreement did not authorize such a bonus. Greenhill was allowed to retain the $7 million balance of its compensation.
As noted in the previous post, my sense is that Miller and attorneys at the Akin, Gump law firm are not going to be exchanging holiday greeting cards any time soon.

The Spokesman for the NatWest Three

Posted on by
4

What do you do when you can’t hang out and chat with your blokes?

Well, in the case of David Bermingham — one of the three former London-based National Westminster Bank PLC bankers dubbed the “NatWest Three” in the lexicon of Enron criminal cases — he sits for this interesting interview with the Chronicle’s Tom Fowler.

Although he does not reveal how he and his co-defendants intend to defend against the prosecution, Bermingham tells the story of how he and his NatWest colleagues — Gary Mulgrew and Giles Darby — voluntarily went to the UK equivalent of the SEC in November 2001 upon learning through news reports that a transaction in which they and NatWest Bank were involved had become part of the fraud investigation of former Enron CFO Andrew Fastow and his right-hand man, Michael Kopper.

Subsequently, the UK authorities passed along the information provided to them by Bermingham and his mates to the SEC and, the next thing you know, Bermingham, Mulgrew and Darby are the subject of a criminal complaint in Houston.

No US investigator contacted Bermingham, Mulgrew or Darby to get their side of the story before firing off the criminal complaint against them, but — as Bermingham notes — the Enron Task Force probably viewed the three bankers as pawns in their effort to put pressure on Fastow. After Fastow copped a plea, the Task Force was stuck with its dubious decision to prosecute the three UK citizens.

Although not well-reported in the press yet, the case against the NatWest Three is fairly straightforward, at least as Enron-related criminal cases go.

The Task Force alleges that the three defrauded their former employer by conspiring with Fastow and Kopper to underpay NatWest for its interest in an entity named Swap Sub, an affiliate of LJM1, the Fastow/Kopper-managed special purpose entity that was created in 1999 to hedge Enron’s valuable but highly volatile interest in a technology company called Rhythms.

Fastow arranged to have an entity called Southhampton that was owned by his family, Kopper and several other Fastow underlings at Enron (including Ben Glisan) buy NatWest’s interest in Swap Sub in March, 2000 for $1 million, which was substantially more than NatWest had that interest valued at the time.

After NatWest sold out, Fastow sold a portion of the old NatWest interest in Swap Sub through Southhampton to the three bankers personally for $250,000. About a month and a half later, Fastow and Kopper arranged to have Enron and Swap Sub unwind the hedge on the Rhythms stock, which resulted in Enron purchasing a large chunk of Enron stock from Swap Sub. The NatWest Three’s net share of the Enron stock sales proceeds was $7.3 million.

In short, the Task Force alleges that the NatWest Three’s making $7.3 million on an investment of $250,000 a month and a half earlier violates the “too good to be true” rule.

Presumably, Fastow and Kopper are prepared to testify that the NatWest Three knew that Fastow and Kopper had arranged with Enron to unwind the hedge on Rhythms stock with Swap Sub, knew that such unwinding would make Swap Sub worth much more than NatWest had it valued at the time, and that neither Fastow nor the NatWest Three disclosed the situation to NatWest before the bank sold its interest in Swap Sub to Southhampton for a measly $1 million.

For their part, Bermingham, Mulgrew and Darby contend that they knew nothing about Fastow and Kopper’s plan to unwind the Rhythms hedge with Enron, that the $1 million price that Southhampton paid for NatWest’s interest in Swap Sub was substantially more than it was worth at the time, that the $250,000 price they paid for an interest in Swap Sub was similarly reasonable given the risk of the investment, and that they were as pleasantly surprised as anyone on the big return on their investment when Enron and Swap Sub unwound the hedge a month and a half later (remember, all this took place before the bursting of the stock market bubble on tech stocks).

Interestingly, despite the fact that all of the foregoing information has been well-known to NatWest for several years now, the bank did not pursue either a civil case or criminal prosecution of the NatWest Three in the UK.

By the way, colorful Houston-based criminal defense attorney Dan Cogdell, who successfully defended former Enron in-house accountant Sheila Kahanek in the Nigerian Barge case, is defending Bermingham. Cogdell’s involvement ratchets up the entertainment value of any case, so stay tuned.

Colbert strikes again

Posted on by
1


How on earth did Florida Democratic Congressman Robert Wexler’s staff allow him to do an interview with Stephen Colbert without first advising him what he was getting into?

Thinking about progress in health care

Posted on by
2

This NY Times article tells the fascinating story about the assassination of President James A Garfield in 1881 an exhibit commemorating the 125th anniversary of Garfield’s assassination at the National Museum of Health and Medicine at Walter Reed Army Medical Center.

President Garfield was shot in Washington by a disgruntled federal job-seeker, Charles J. Guiteau, who made his move while Garfield was waiting for a train. What is not as well-known is that neither of the shots that hit Garfield should have fatal even by the more primitive medical standards of the 1880’s.

As my late father once observed to me in a discussion of Presidential assassinations, “Garfield’s assassin just shot him. Garfield’s doctors killed him.”

The Times article reminds me of another interesting medical case that Dr. Donald J. DiPette, chair of the Department of Internal Medicine at Texas A&M University Medical School, presented earlier this year during the annual Walter M. Kirkendall Lecture that the University of Texas Medical School conducts in honor of my father.

Dr. DiPette’s lecture was about how advances in clinical research on hypertension had contributed to our understanding and knowledge of related chronic illness. He used a case study of a man in his mid-50’s in the late 1930’s who was showing signs of acute hypertension as an example of how that understanding can change the world.

The negative impact of hypertension on an individual’s health was not well-understood in the late 1930’s and 40’s. Dr. DiPette showed how the patient’s health in the case study deteriorated at an accelerated rate as his blood pressure readings increased markedly from 1937 to 1945. One evening in early 1940, the subject in the study fainted at the dinner table. The patient’s doctors at the time were unsure why.

By 1945, the patient — who was still working in an important and high-pressure job — had blood pressure that was off the charts and was experiencing a combination of associated medical problems that would have landed him in a hospital these days.

Nevertheless, the patient continued to work and, a couple of months after a particularly important work-related meeting, the patient died of a massive stroke.

Most times, the subjects of medical case studies are anonymous. But at the end of his lecture, Dr. DiPette revealed the name of the subject of this particular case study — President Franklin D. Roosevelt.

Dr. DiPette’s point was that President Roosevelt’s acute hypertension clearly affected his performance. Our lack of knowledge about hypertension in 1945 — which finally began to be better understood in the decade after FDR’s death — changed the course of the 20th century. That “important work-related meeting” that Dr. DiPette referred to was the Yalta Conference of early February 1945 that doomed Eastern Europe to over a generation of tyranny.

Remember that the next time you hear someone complain about the cost of advancing medical research.

Where Tiger stands

Posted on by
Reply

woods_tiger.gifThe NY Times Damon Hack, who is writing some of the best articles on golf in the mainstream media, weighs in on Tiger Woods’ British Open victory with this article that summarizes where Tiger stands in relation to the greatest golfers in history.
Woods, who is 30, won his 11th professional major championship (14th if you include his three straight US Amateur championships), which tied him with Walter Hagen and places him seven professional major victories behind Jack Nicklaus’ record of 18 majors. No one else stands between Woods and Nicklaus, and Nicklaus did not win his 11th professional major until he was 32.
After Nicklaus won seven professional majors by 1967, he had his biggest lull in his prime when he went the next 12 majors without a win, from the last two of ’67 through the first two of 1970. Nicklaus came back to win 10 more by the end of 1980, and then added on his sixth Masters in 1986 for his 18th.
In the best stretch of his professional career, Woods won seven majors in less than three years from the 1999 P.G.A. Championship at Medinah Country Club to the 2002 United States Open at Bethpage Black. Then, Woods went 10 majors without a victory between 2002 and 2005 as he went through an extensive swing change that flattened his swing plane, but with the victory over this past weekend, Woods has now won three of the last seven majors and will enter the final major of the year — the P.G.A. at Medinah in August — as the odd’s-on favorite again.

The New Spirit of Aggieland?

Posted on by
Reply


Given the recent downturn in Texas A&M football fortunes, rumor has it that Coach Fran is going to replace the Aggies’ traditional pre-game ritual “Spirit of Aggieland” with the New Zealand National Rugby team’s traditional pre-game HAKU.
Just kidding.

Something to think about before you grab the big stick

Posted on by
1

woods wins BOtiger_060723.jpgTiger Woods’ dominating performance (and here is a video of the swing that he used) in winning this year’s British Open gives us hackers something to think about next time we tee it up on our home course.
Woods averaged 291 yards off the tee at Royal Liverpool, which stretches over 7,200 yards. He led the field by hitting 48 of 56 fairways while making three eagles, 19 birdies, 43 pars and seven bogeys. And nothing worse than that.
By the way, Woods accomplished this mostly by not using his driver, which he used precisely once during the entire tournament. His club of choice off most par 4’s and 5’s was his steady 2-iron.
Now, links golf is different from American golf in that the ball rolls farther and the need for forced carries is not as great on links courses. However, count the number of fairways you are hitting with your driver the next time you play. If it’s less than 75%, then try a round without using it at all. My bet is that your score will not be much different and, if it is, it will probably be lower.
By the way, I wonder if Phil Mickelson noticed what Tiger was hitting off the tee?