January 10, 2005
Arthur Andersen's Day in Court
Posted by Christine Hurt

Arthur Andersen's Day in Court

Friday, the Supreme Court granted cert to hear the appeal of Arthur Andersen's 2002 obstruction of justice conviction in connection with its representation of Enron. (WSJ article here)

The thrust of the appeal is one word: "corruptly."

AA was charged under 18 U.S.C. 1503 for witness tampering: "corruptly persuading" someone to alter or destory a document for use in an official proceeding. This section, unlike other federal obstruction of justice statutes, does not require an official proceeding to be pending or about to be pending at the time of the actual offense. The Andersen shredding took place beginning on October 23, 2001, during a time that Enron and Andersen had both received SEC notices of an Enron investigation following Enron's October 16, 2001 restatement of earnings, but before the SEC had issued a subpoena to AA. Following the November 8 subpoena, an email went to AA employees to retain all documents.

At trial, the trial court instructed the jury that "corruptly" did not mean that the individuals reminding employees to follow the document retention policy had to know that the shredding was illegal, but only that the shredding would have an improper purpose "to subvert, undermine or impede the fact-finding ability of an official proceeding." This point will be taken up by the high court.

I have been told by criminal law colleagues that the Rehnquist court has followed a pattern of requiring increased levels of mens rea for certain crimes, although I don't have a cite for that. If so, then a reversal would follow that pattern.

Of course, a reversal would be tantamount to an exoneration of a death-row defendant two years after the execution. AA's staff is 1% of its pre-indictment staff. Besides the reputational effects of the trial, the conviction revoked AA's ability to audit publicly-held companies under SEC rules. A reversal at this point could only have an impact for future defendants, although, as the WSJ article points out, a reversal would help AA defend its many civil lawsuits.

More on this subject may be forthcoming on White Collar Crime Prof Blog, here.

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