Daily Archives: September 7, 2006

Appreciating Agassi

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Agassi3101.jpgDon’t miss this superb Jay Winick/Opinion Journal op-ed on tennis icon, Andre Agassi, who retired gracefully this past weekend after after putting on a stirring performance during the first three rounds of the U.S. Open tournament in New York.
I’ve never met Agassi, but I have followed his career with interest because of our mutual friendship with prominent Las Vegas attorney, David Chesnoff. Several years ago, I had the pleasure of spending a morning with Agassi’s parents while Andre’s father gave David’s son a tennis lesson at the Agassi’s Las Vegas home where they have lived for several decades. Andre’s parents are wonderfully down-to-earth folks who are a joy to be around, so it’s no surprise to me that their son has matured into a fine man.
By the way, although probably not the greatest tennis player of his generation, Agassi nevertheless is one of the most remarkable athletes of this era. A case in point is a golf game that he played several years ago with David in which Agassi faced a daunting recovery shot around trees to a small green protected by a lake. Agassi grabbed a 3-iron, sized up the situation and then hammered a 200 yard shot that sliced around the trees on to the green, stopping 15 feet from the cup. Agassi calmly put the club back in his bag, jumped into the golf cart, looked at David and asked with a wink:

“So, David. What’s so tough about this game again?”

Is the backdating options scandal “the Enron of 2006?”

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backdating options.jpgYes, in an observation made yesterday during a Senate committee hearing that should send shivers up the spine of anyone concerned about the increasing criminalization of business in the United States, that’s how Senator Robert Menendez (N.J. Dem) characterized the widespread practice of backdating options as a means of compensating corporate executives (previous posts here).
That Senate hearing follows on a recent and far more reasoned discussion of the issues involved in backdating options that Matthew Bodie began here. Larry Ribstein returned Bodie’s serve here and Bodie volleyed back here. Geoffrey Manne and Josh Wright got into the game with this post, which Bodie responded to here. Finally, Professor Ribstein ripped this winner to close the discussion, at least for now.
Compare the depth of the foregoing discussion with the superficial platitudes described in the article about the Senate hearing yesterday. Then consider the damages to lives, communities and careers that occurred as a result of the criminalization of business that occurred as a result of the Enron meltdown. Is the allegedly wrongful conduct in regard to the practice of backdating options so clear that it should be handled with the blunt instrument of the criminal justice system? If you really think so, then consider this.

Wanted: Adult Supervision at the Enron Task Force

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This one takes the cake.

After trampling justice and the rule of law for five years while damaging lives, families and careers of former Enron executives and a selected few who did nothing other than have the misfortune of engaging in transactions with Enron, the Enron Task Force outdid itself yesterday in responding to the Ken Lay Estate’s motion to vacate the jury verdict against the late Mr. Lay.

In its response, the Task Force requests U.S. District Judge Sim Lake to postpone ruling on the Lay Estate motion until the Task Force has had an opportunity to lobby Congress to change the law that mercifully provides for the dismissal of charges against individuals such as Lay who die during the criminal proceedings. The Chronicle’s Tom Fowler reports on the Task Force pleading here, Chronicle business columnist Loren Steffy comments here and the NY Times’ Alexei Barrionuevo reports here.

Given the Task Force’s lengthy track record of exhibiting dubious judgment, its over-the-top response to the Lay Estate motion is really not surprising.

However, it is a stark reminder that the use of the overwhelming power of government to criminalize business executives — now even in death — is seriously out of hand, as even some prominent former Justice Department officials are now acknowledging publicly.

As Sir Thomas More reminds us, we better address the difficult task of curtailing use of that power, lest it be used on us.