Unlike many inmates in federal prison, Andrew Wiederhorn won't have to worry about finding a job when he's released. In fact, the CEO of Fog Cutter Capital Group will be making $2.5 million while he sits in a cell serving his 18-month sentence.
The board of directors of his company voted to keep Wiederhorn on the payroll and even make him eligible for a bonus after he pleaded guilty to a pair of felonies in the financial collapse of another company that loaned him $160 million.
The Fog Cutter deal is nearly unprecedented in the post-Enron era of corporate scandal, when domestic diva Martha Stewart voluntarily resigned her top post after she was indicted in a stock trading scandal, and most top Enron executives quit or were fired after the giant energy company declared bankruptcy.
"It's incredibly unusual," said Mark DeFond, a University of Southern California business professor. "These issues of management integrity have always been important and have never been more important than now."
As Wiederhorn prepares to report to federal prison Monday, Fog Cutter has been warned it could be delisted from the Nasdaq Stock Exchange and its auditors have resigned.
But Wiederhorn still insists that his case is different from Enron or Stewart because he relied on the professional advice of attorneys and accountants to make decisions that ultimately resulted in his convictions.
Unlike Stewart, convicted of lying to federal investigators, and Enron founder Kenneth Lay, accused of fraud and conspiracy, Wiederhorn argues he was guilty only of technical violations without the criminal intent required of those felonies.
"The government assured us from the beginning that they were trying to determine whether or not there was intent," Wiederhorn said. "And if there was no intent, and I sincerely relied upon counsel and accountants and all kinds of advisers who were professionals, then that was it, they would walk away."
About a year ago, Wiederhorn said, after being under investigation for nearly four years, he and his attorneys felt "there was a changing of the tides."
"They were looking to see if they could make a case stick," Wiederhorn said. "I don't know if that's a sign of the times, from the environment we're in, and all the other unrelated but dramatic corporate scandals."
Lance Caldwell, the assistant U.S. attorney who prosecuted Wiederhorn, said the case was complicated and suffered from the loss of its star witness, Jeffrey Grayson, the founder and former CEO of Capital Consultants, the company that loaned Wiederhorn $160 million before Capital Consultants collapsed in September 2000 and was seized by federal regulators.
Grayson suffered a debilitating stroke in May 2002 and has been unable to testify.
Caldwell said Wiederhorn's reliance on attorneys and accountants also was a factor in reaching a plea agreement.
But the Fog Cutter decision to pay Wiederhorn while he is in prison and provide $2 million in restitution on his behalf came as a complete surprise to prosecutors the morning after the plea was entered.
"We had no hint that Fog Cutter intended to retain Wiederhorn or reimburse him," Caldwell said.
Wiederhorn, 38, earned a reputation as a financial wunderkind in the early 1990s as he turned investments in the secondary mortgage loan market into a public company by 1997. By the end of that year, he had become one of the five highest-paid chief executives in Oregon, joining the ranks of top executives of established companies such as Louisiana-Pacific, Tektronix, Mentor Graphics and Sequent Computer Systems.
His success financed a high-flying lifestyle that included the usual corporate accouterments - a private jet, mansion, vacation home, expensive cars.
But within a year, in 1998, financial problems in Eastern Europe and Asia triggered an international monetary crisis that utlimately forced Wiederhorn to seek loans to shore up a company that had become dangerously overextended.
Wiederhorn said nobody saw the crisis coming, and financial analysts, accountants, attorneys and prosecutors all agreed with him on that point in interviews about his former company, the Wilshire Financial Services Group.
When he turned to Grayson and Capital Consultants for help, Wiederhorn said he was relying on another company that had built a solid reputation but also was struggling financially.
The difference, Wiederhorn said, is that he was trying to rebuild his company while unknown to anybody, Capital Consultants was being kept afloat illegally in what prosecutors later called a giant pyramid scheme that resulted in criminal convictions against top executives.
Wiederhorn said he became collateral damage when the $160 million loan from Capital Consultants pulled him into the federal investigation of Grayson.
He was forced to hire defense attorneys who ended up battling with his business attorneys over their advice to him on handling the loan and his taxes.
Lanny Davis, former special counsel to President Clinton, led a team that eventually negotiated the plea deal that will send Wiederhorn to federal prison despite what Davis has repeatedly insisted - in interviews and in newspaper editorials - is a case of overzealous prosecution.
"I'm not impugning the integrity or the sincerity of the prosecutors - they made valid, good-faith judgments and I'm not questioning them," Davis said.
"But the most important observation I can make is that we're in an age where accusation and even innuendo, which is less than accusation, becomes a surrogate for guilt," he said.
Davis noted that Wiederhorn has taken personal responsibility for the losses suffered by the Capital Consultants pension funds that loaned him money, and that the pension funds were eventually reimbursed for much of it.
He also emphasized that the plea deal involved Wiederhorn's old company, and Fog Cutter is not involved in any way with Wilshire or the investigation that led to the conviction.
But regret and even reimbursement still do not change the effect of a guilty plea to a federal felony, said David Ruder, former chairman of the U.S. Securities and Exchange Commission and now a Northwestern University law professor.
"This reminds me very much of Michael Milken and attempts to alleviate his guilt," Ruder said, referring to the former junk bond king of Wall Street who went to prison for two years after pleading guilty to fraud and conspiracy charges.
Ruder said Milken avoided other potential convictions with a plea agreement, and then worked to rehabilitate his image, but the fact remained that he had committed felonies.
Wederhorn will have to live with his conviction no matter whether he returns to his new company when he is released from prison, Ruder said.
"Eighteen months is a tremendous penalty for a person like that, just as five months for Martha Stewart is tremendous," Ruder said. "For white-collar crime, any jail time is extremely significant."
Caldwell said he could not comment on the specifics of the Wiederhorn case. But, in general, he noted that cases such as Enron and Martha Stewart accompany an economic downturn.
"Financial or corporate fraud often follows a period of excess or a bubble in valuations of stock, bond or real estate assets," Caldwell said. "When everyone is making money, fraud or corruption is obscured. But when the bubble bursts, these things are revealed."
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