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No Jail, But Lots At Stake For Andersen

In previewing the obstruction of justice trial of the Arthur Andersen accounting firm, Legal Analyst Andrew Cohen explains why a plea deal couldn't be reached.

The most important thing to remember about the obstruction of justice trial beginning Monday against the beleaguered accounting firm Arthur Andersen is that no one will go to jail if the partnership is convicted of the federal charge against it.

Life and liberty aren't at stake; property and the financial survival of Andersen are.

That's why there has been no plea deal in a case that at first glance screams out for one. No one in the defense camp faces the prospect of a few years in prison.

And no prosecutor ever will be accused of pushing too hard to imprison some poor mail-room guy who was just doing what his boss told him to do when he shoved a few thousands pieces of paper through the company shredder while a federal investigation into the contents of those papers happened to be underway.

From a purely personal point of view, there is almost too little at stake for there to be a deal.

But, in some ways, there's also too much at stake for a pre-trial deal when you consider what an admission of guilt would mean for Andersen's future. In many ways, it would be worse than a conviction after trial, since a conviction could be appealed for years to come and challenged in the court of public opinion for all time

Whatever chance there is that a Houston jury will acquit the firm, either because of the evidence or because of sympathy, it's greater than the chance that the partnership could admit guilt and still operate the way it has for so many years. Given these circumstances, wouldn't you roll the dice if you were running Andersen right now?

I would, if only because the only chance Andersen has of easing out of its global legal troubles -- the federal criminal trial in Houston is only a big tip of the iceberg -- is to gain an acquittal in this case and then use the momentum from that favorable verdict to settle the other suits against it.

Andersen's turnaround, if it is going to come at all, has to start somewhere and I suspect the firm's lawyers and executives figure the criminal trial is as good a place as any to make that start -- to make their stand.

So what does Andersen have going for it in this case? A little.

First, former Andersen executive-turned-government witness David Duncan cannot prove everything the feds need to prove against the firm in order to gain a conviction. And Andersen's lawyers can and will turn whatever Duncan can prove against him, arguing to jurors that he was one of a few "bad apples" out of hundreds of executives who decided to authorize the shredding and deletion of e-mails even after the investigation had begun.

Legally speaking, that shouldn't be enough for an acquittal since the knowledge and actions of one partner typically under the law are imputed to the firm as a whole. But it's an angle that just might resonate with jurors anyway since jurors don't always follow the niceties of corporate law.

Another argument Andersen has going for it is the equity argument which I suspect we'll hear over and over again from the firm's lawyers: why punish thousands of innocent Andersen employees by dramatically jeopardizing their jobs over a crime perpetrated by a few individuals?

If the jury thinks broadly about the facts and the law, Andersen has a chance for its acquittal.

What does Andersen have going against it? Plenty.

Even if Duncan can't deliver all the goods for the government, he'll deliver plenty. And certainly he won't be the only witness who'll testify that there was shredding and deletion going on at Arthur Andersen when there shouldn't have been.

The firm itself reported its improper conduct to the authorities and then confirmed it to Congress. And don't forget that this is the post-Sept. 11th world, where juries across the country seem to be more inclined than ever to offer very little or no sympathy to any defendant in any criminal context.

Add to that new reality the notion that regular people are furious about Enron and it's not exactly a recipe that ought to have Andersen lawyers optimistic.

If Andersen is convicted, the penalty will be more than just a fine and probation. A conviction likely will preclude Andersen from auditing the financial statements of public companies registered with the Securities and Exchange Commission and you don't need to be a Wall Street wiz to comprehend just how devastating that limitation would be on Andersen's ability to continue or rebound.

That's why we are likely to see this trial through to its end.

And even if Andersen is acquitted, the government will have sent the message it wants to send to all those other companies out there who are being investigated or who may one day face the prospect of an investigation: you've got to know when to hold your documents and know when to fold them and when you know you are the subject of an investigation, it's usually time to hold them.

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