BERAL, INC.
Andrew Racz
Director of Research
300 East 54 Street, Suite 26C
New York, NY 10022
Phone: (212) 319-6949
Fax: (212) 753-1944
E-mail: mlikar@aol.com

Other People's Money -Enron & Martin Siegel, Esq.

I never thought that I would have to cheer up the New York Times in research, but I venture to suggest that the article of January 26, 2006 entitled "Big Test Looms for Prosecutors in the Enron Trial" can be amended, supported, modified by analyzing the facts as securities analysts do.

My article is basically what I call "Other People's Money". You cannot touch other people's money. You cannot use sophisticated techniques: pressure, blackmail, or persuasion, or lengthy legal arguments. The issue is you cannot touch other people's money. What sort of a world would be living in if ten million Hungarians, 280 million Americans, and one billion Indians did not observe that law? What is mine is mine, and you cannot touch what is mine.

In analyzing the so-called $100 million cash loan from Enron to Ken Lay, the argument is that it was an inadmissible banking transaction. In my opinion, the facts are as follows. In 1989, Mr. Lay negotiated a revolving loan facility of $2.5 million which is basically for a highly paid executive a cash account with overdraft protection. Most middle-class people have an overdraft facility attached to a bank account.

However, in 1994 the limited was increased from $2.5 to $4 million. If Enron was prospering, so the business investments of Ken Lay lose their importance. More income, more business, more credit and overdraft facilities. However, on May 3, 1999, two and a half years before the collapse, it was amended again to permit Mr. Lay to repay any outstanding balance on the revolving loan either in cash or shares of the common stock of Enron. Like any other bank facility, the question of how to use the overdraft facility is the description of the nature of the agreement.

According to the papers filed in the U.S. bankruptcy court, Southern District of New York, Case No. 01-16034, Kenneth and Linda Lay activated the loan facility 26 times and on 22 occasion tendered stock in a 12-month period beginning the petition to bankruptcy. The 12 payments corresponded to $81,500,000 that Lay drew down in a single year under the revolving loan facility and conveyed shares of Enron. This is not an overdraft facility. This is the misuse of an unrestricted, unregulated, unsupervised wild margin accounts when cash is converted into stock, and a facility which frankly nobody ever heard of, and used accordingly.

Did Linda and Ken explain the change of usage of the new agreement? Full disclosure! I learned it at Cambridge (U.K.). Full disclosure even to former SEC officer Martin Siegel, Esq.

Let me raise a hypothetical example. What would have happened if in the last twelve months the chairman and president of General Motors, or any of the directors of Ford Motor Co., had borrowed money, tendering stock wildly, 26 times in a single year? The New York Stock Exchange would have had to halt trading in GM and a Congressional investigation would have ensued.

The misuse of the loan should have led to a stop in trading of Enron six months earlier than it happened because the transactions were unusual. It is not a traditional overdraw facility or a revolving loan facility as it is described. There was no full disclosure! Yet Mr. Siegel, and I'm talking about Martin Siegel, Esq., attorney for Ken Lay and Linda Lay, of the law firm of Brown, Rudnick, Berlack & Israeli, stated in the Houston Chronicle of July 3, 2003,

"Lawyer says the Lays have done nothing wrong."

In other words, the Lays should keep the money. Forty-five thousand Enron employees suffered before four years later the two top Enron executives, including Mr. Lay, are heading to the court room. According to the New York Times, the defendant has simply responded that business practices may have been aggressive, but everything they did was lawful. Mr. Lay is expected to state, according to the New York Times, that his accounting and financial decisions were both correct and appropriately disclosed. I say no! You cannot churn a corporate loan facility without advance notice to the SEC.

It may be so, but is there any mention of the unusual misuse of a small credit line of $4 million to the standard of the stature of Mr. Lay? And disregarding the fact that $100 million of hard cash passed from Enron to his and his family's hands. Mr. Siegel could have mentioned that the law was stated, but experts could have explained that the law was statutorily right but fundamentally totally wrong. Did Mr. Lay ever negotiate this wild extraction of capital from Enron? And did the filings disclose that the charter of the original revolving credit facility did not coincide with what really happened.

Basically, Linda and Ken Lay instructed their attorney, Martin Siegel, to tell the 45,000 impoverished Enron employees, "LET THEM EAT CAKE".

I had a similar encounter with Mr. Siegel. He was on the opposite side, and frankly I don't know which side. Briefly the facts are as follows. In October, 1994, I met a financier, Robert Friedland, in New York. He tried to raise money for a company which was called Sirius Satellite. I tried to help him. He then mentioned that he had a diamond company and he invited me to Vancouver to meet his partner. At that time, Diamond field hit the biggest nickel discovery in the history of the American continent. I became friendly with the two co-chairmen and introduced Jean Boule, the co-chairman, to First Boston. I followed since 1981, and interviewed the chairman in a tape-recorded interview and recommended the stock before the stock had a 10 to 1 run-up and has done meaningful amounts of syndicate business with First Boston for over a decade.

It was one of my greatest winners as a securities analyst. My friend Jerry Tsai, then chairman of Primerica, told me, "Andy, I made a mistake. I bought Smith Barney for $750 million. I wanted distribution. I should have bought First Boston."

Eventually First Boston sold Diamond field to International Nickel for $3.2 billion. The handshake deal I had for an $800,000 fee became clouded. At that time, an attorney whom I never met, never heard of, came into the picture, Martin Siegel, Esq., head of litigation for Brown & Rudnick, and he said he was going to be the lawyer. That was against my wishes, as I knew some of the best known attorneys in the United States. I dealt principally with the head of Shea Gould, Milton Gould, and with Stephen Kumble, the head of Findlay Kumble. There was no reason for me to do business with a new lawyer.

The next step was that I saw my then employer, Bishop Rosen, named as the only claimant. The dates were very clear. I got to know Friedland in August, 1994, Jean Boule in October, 1994. The introduction to Salomon Brothers and First Boston and Jean Boule was in November, 1994. I joined Bishop Rosen in May, 1995. Nobody and no attorney, no brokerage firm, no other analyst had anything to do with the discovery of Diamond field and delivering it to First Boston.

Martin Siegel or Bishop Rosen had never been inside First Boston, never been to Vancouver, never met a single executive of Diamond field. That achievement, as approaching 1998 I became sixty years old, would have been the road to a happy retirement. In 1980, I wrote a few lines to Governor Reagan for his speech at the Waldorf Astoria and at his request, I put together something about gold. The future president incorporated my ideas and stated that in the good old days, you -- meaning the American people -- looked towards their golden retirement age. Today the price goes up ten dollars on the London market. This was, of course, in October, 1980, when gold hit $800.

In my lifetime, Diamond field and Sirius Satellite and another company Jean Boule started, American Minerals, or rather the large-scale founding stockholder (the stock went from $1.00 to $27 in five months) was my golden retirement. I was not stopped by the London market. I was stopped by Bishop Rosen and Martin Siegel.

In the subsequent arbitration, the settlement was $200,000. I never retained Martin Siegel, and he flatly refused to put anything in writing. While I got $19,000, the expense of five or six trips to Vancouver basically wiped out everything. My $800,000 fee -- the golden retirement money -- became OTHER PEOPLE’S MONEY.

Other people's money. Ken Lay went after Enron for other people's money. In Diamond field, Bishop Rosen went after other people's money. Bishop Rosen had absolutely nothing to do with the Diamond field deal, except that at that time I was going through two cancer operations and my resistance was low. When I arbitrated against Bishop Rosen, there was an agreement. The agreement was written of my leaving Bishop Rosen, which after this incident was obvious, and, just like the Enron people, I expressed very clearly our dissatisfaction with what had happened. Subsequently, I left Bishop Rosen.

I am disclosing now that prior to the so-called parting agreement, Martin Siegel demanded on the telephone that if I didn't give a release to him, to Martin Siegel, Esq., of Brown & Rudnick, and to his law firm, I would have a U-5 which is different than it's written now, and it would only be modified to my satisfaction - meaning I cannot live without modification. I have discussed this matter with the SEC -- the verdict was "explicitly excluded". My interpretation -- extortion. I was put under pressure to give up $200,000 that nobody can take. Nobody's livelihood can be threatened to give a release to a lawyer you never hired.

The words were as follows from Martin Siegel: "I am not going to discuss the merits of your claim with you, you are a liar."

Martin Siegel, member of the New York Bar Association, partner and head of litigation of the respected international firm of Brown & Rudnick, stated: "No, no, no. I am not playing your game. We either have settled all the claims and we agree that I settle with Bishop Rosen and its attorneys, because you are not going to settle with them without releasing their attorneys."

Later it was added that Martin Siegel said, "We would modify the U-5 to some acceptable manner." In other words, Martin Siegel basically said if you want to work in this business we will change your U-5, but you better release the lawyers, namely me. It was blackmail.
The issue was:

OTHER PEOPLE’S MONEY

However, in 2002 I filed an arbitration. From Mr. Siegel’s summation (and it is on the record), there was one sentence which I have to bring in. Martin Siegel, in summary, said, "Mr. Racz is here in the arbitration, fighting against Bishop Rosen and me for only one reason. Because his wife is a lawyer."

The interpretation of this sentence is if you don't have money, you cannot fight in America.

Mistake number one, Martin! She went to law school in Boston College, and she defeated you twice . . . and she has a fur coat!

Then Siegel requested that I should never be able to come back!

Mistake number two, Martin. I do, I will. It is you who want to keep OTHER PEOPLE’S MONEY.

Now I want to send a message to the senators, to the prosecutor, to other parties but particularly the 45,000 forgotten Enron employees. I quote Charles DeGaulle's immortal words of June 14, 1940, from London, addressing the French people. "You are not alone. France is not alone. France lost a battle. It didn't lose the war. This war is a world war."

This is really the whole case of Enron. Fight back. Don't give up to a legal argument that privileged but basically lack the sincerity of an agreement. I have not given up this matter. I was sixty, I admit. I had two cancer treatments, I admit. I was treated by the same outstanding cancer specialist, Dr. Richard Stock, who treated Rudolph Giuliani. But I have not given up the fight. Let them eat cake? My answer is, Martin, you are not Marie Antoinette. For ten years I was a friend and business associate of the late Governor John B. Connelly. I formed his oil company Chapman Energy and in my heart, I am a Texan.

I suffered actually more. For the arbitration when I challenged Bishop Rosen, Martin Siegel brought in -- and this is strictly against the law -- legal papers from a divorce lawyer, Eugene Wolkoff, Esq., 700 Camino del Monte Sol, Santa Fe, NM 87505, Tel: 505-982-2063, to influence obviously the panel about my personality. I want to emphasize that this was against the law. Divorce papers cannot be used in any legal proceeding unless authorized by a judge. There was no such authority given.

Actually, Mr. Siegel brought a team together. Divorce lawyer Eugene Wolkoff was a client of NASD member Bishop, Rosen. It was a team! When it comes to money, OTHER PEOPLE’S MONEY -- Siegel put up a "dream team".

These ups and downs obviously upset my personal life, a personal life which has started in 1938. By 1944, I was an orphan. It affected other aspects of my life in the last ten years or so. Divorce attorneys don't bring happiness. The threats I have received to close the arbitration were numerous and also well documented.

It is only several years later that I caught up with my son Justin, who has become a successful writer and a television personality. He and I now can work together. I am negotiating two book rights. One is on the life of Bunker Hunt. I hope to write it with Justin. I always tell him to look forward. I always tell him that the way I was brought up, a son starts when the father leaves off.

But I taught him never to give in. I always quote what happened to the school boys of Israeli when they heard on closed-circuit television the Eichmann trial. They jumped up and they asked what the Enron people and I will hopefully ask: Where is our army?

We lost the battle. We did not lose the war.

###

Note: For full disclosure, I reported this and related events to William Donaldson and President Bush.

Disclaimer

Information contained herein is based on data obtained from recognized statistical services, issuers reports or communications or other sources believed to be reliable. However, such information has not been verified by us and we do not make any representation to its accuracy or completeness. Any statement non-factual in nature constitutes only current opinions which are subject to change. BERAL INC. or their officers, directors, analysts or employees may have positions in the securities or commodities referred to herein, and may as principal or agent buy and sell such securities or commodities. An employee, analyst, officer or a director of BERAL INC. may serve as a director for companies mentioned in this report. Neither the information nor any comment expressed shall constitute an offer to sell or a solicitation of an offer to buy any securities or commodities mentioned herein. There may be instances when fundamental, technical and competitive opinions may not be in concert. This firm may from time to time perform investment banking or other services for or which investment banking or other businesses from any company mentioned in this report.

 

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Andrew Racz. 300 East 54 Street, Suite 26C, New York, NY 10022
Phone: (212) 319-6949 Fax: (212) 753-1944. E-mail: mlikar@aol.com

Copyright © 2011 Andrew Racz. All Rights Reserved.

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