http://www.tompaine.com/articles/2007/05/11/the_next_enron_scandal.php<snip>
The media, business elites and the Washington establishment are behaving as if Enron is a closed book. CEO Ken Lay is literally dead and buried; finance chief Andy Fastow and the other malefactors have been punished; Enron's accounting firm, Arthur Anderson, has dissolved. Blares the cover of the latest Fortune: "Business Is Back! Profits Are Boffo. Stocks Are On Fire...And the Rogues Are Behind Bars." The system is working, right?
The schemes included Merrill Lynch’s "purchase" of some Nigerian barges from Enron on December 31, 1999, which Enron bought back six months later. That way, the debt Enron incurred by buying them in the first place never showed up on the year's books. What was in it for the investment bank? A 20 percent profit—free money.
Barclays, another investment bank, created a shell company specifically to hide Enron debt. Credit Suisse First Boston let Enron make up "commodities deals" that never happened. All and sundry such deals made Enron look healthy to the investors they suckered, even as the company actually was earning no profit at all.
While some banks settled with the victims, others held out—a wise decision, it turns out. Just weeks before the opening gavel, the Fifth Circuit crapped on their victims. The banks' actions were "hardly praiseworthy," but the banks were simply not liable, the majority concluded, because the banks themselves made no false statements to the public—only Enron did.
Imagine if this became the general standard in our criminal law. As the lawyers who sued the banks put it, "The mastermind of the bank robbery who planned the heist, recruited the other robbers, provided the weapons, drove the get-away car, and went back to the hideout to split up the loot is not legally responsible just because he did not show his face inside the bank."