Date: July 5, 2006 7:00:31 PM PDT
Subject: FEAR: TX: Kenneth Lay's death probably means no forfeiture of his assets
The following article predicts that the federal government will not be able to forfeit Kenneth Lay's assets. The analysis is not quite correct, though. Lay had not been sentenced yet. A criminal conviction abates at the death of the defendant, and because criminal forfeiture is "in personam" (punishment against the person), there is case law saying a criminal forfeiture verdict dies with the person. It's clear that an in personam criminal case cannot proceed after the defendant dies. They could still use civil forfeiture, though, if the statute of limitations has not run. Maybe it has. The government has 5 years after discovery of the offense to bring the civil forfeiture action. Maybe they knew he was doing this more than 5 years ago. There are some exceptions to the statute of limitations -- a continuing criminal offense extends the statute of limitations until it ends. Also, the doctrine of equitable estoppel often allows a party to bring an action after the statute of limitations expires if they had a good reason for the delay.
Although I have no sympathy for Lay and his evil minions -- who manipulated the power grid in California by causing power outages in order to extort huge rises in energy prices -- I'm glad the federal government won't get his ill-gotten gains. This will leave Lay's assets for the civil suits by his victims, including one by the state of California I believe, and may actually result in restitution for those of us harmed by Lay's criminal actions. His extortionary tactics practically bankrupted California, as former governor Gray Davis was forced to enter extortionate contracts for electricity in order to turn the power back on. Gray Davis was soon removed from office by the Schwartzenegger recall coup -- largely because of Davis' agreement to sign the extortionate energy contracts.
Although I was not too fond of Gray Davis, I'm much less fond of extortion -- especially on such a huge scale. Can you imagine trying to get work done when the electricity would suddenly go off in the middle of the work day, when you are working on a motion or brief? Sometimes it was off for hours, causing us to miss key deadlines, and the computer crash often damaged the files we were working on.
We should never be forced to live with criminals like that controlling our resources for their personal gain. I can't think of anyone in my lifetime who did so much damage to our image of the corporation as benevolent(or, at least, relatively harmless) entities.
The cynics among us are already thinking Lay faked his death and is yukking it up in some tropical isle with no extradition treaty, enjoying the millions he had stashed away. I wouldn't be surprised.
Watch to see whether there is an open casket.
Brenda
Texas Lawyer (subscription) - TX,USA
... from Enron's 2001 collapse will be vacated because of his death July 5, and it's unlikely federal prosecutors will succeed in seeking forfeiture of Lay's assets ...
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