As the Bubble Neared Its End, Bogus Swaps Padded the Books
By DENNIS K. BERMAN, JULIA ANGWIN and CHIP CUMMINS
Staff Reporters of THE WALL STREET JOURNAL
It was 10 p.m. on a Friday, 50 hours
before Qwest Communications International Inc. was due to close the books on
its third quarter of 2001. Chief Operating Officer Afshin Mohebbi sat down
in his 52nd floor office at the telephone giant's Denver headquarters and
tapped out a desperate e-mail to his top salesmen.
The subject line: "Help!!!!!!!!!"
Mr. Mohebbi was alarmed because a series
of sweet deals he urgently needed weren't working out. The plan was for
Qwest to swap connections to its phone network for connections to other
companies' networks. Phone companies had been making trades like that for
years, but lately there was a twist: Both companies would book revenue from
these transactions -- inflating their financial results even though they
were actually swapping assets of equal value.
But Qwest couldn't quite make these
latest swaps work. It had agreed to buy $231 million in access to telecom
networks. But the companies on the other side of the table had committed to
spend less than $100 million with Qwest. The company was going to have to
squeeze more money out of the deals if it was going to meet the projections
it had given Wall Street.
"What happened to the creativity of this
company and its employees?" Mr. Mohebbi wrote in his e-mail. "Let's not have
a disaster now."
In the end, disaster did strike. Ten
months later, Qwest's new chief executive, Richard Notebaert, soberly read a
script during a Monday morning conference call with press and stock
analysts. He announced that the company's swaps had violated accounting
rules. The company later said it would restate $950 million in revenue,
erasing the deals in a stroke from the company's prior results.
When the
business history of the past decade is written, perhaps nothing will sum up
the outrageous financial scheming of the era as well as the frenzied
swapping that marked its final years. Internet companies such as Homestore
Inc. milked revenue from complex advertising exchanges with other dot-coms
in ultimately worthless deals. In Houston, equal amounts of energy were
pushed back and forth between companies. The beauty of the deals, from the
perspective of the participants, was that everyone walked away with roughly
the same amount of revenue to put on their books.
But the swaps rage turned
out to be no bargain for investors. The bad deals contributed to an epidemic
of artificially inflated revenue. In many cases, swaps slipped through legal
loopholes left in place by regulators who had failed to keep pace with the
ever-changing dealmaking of ever-changing industries. The unraveling of
those back-scratching arrangements helped usher in the market collapse and
led to the realization by investors that the highest-flying industries of
the boom era -- telecom, energy, the Internet -- were built in part on a
combustible mix of wishful thinking and deceit.
Bogus swaps added up to a far bigger
piece of American commerce than is widely recognized. The amount of restated
revenue from bad swaps totals more than $15 billion since 1999, according to
an analysis by The Wall Street Journal. That number is especially
significant since investors focused on revenue in new industries that often
had little earnings to show for themselves. Investigators are still trying
to figure out whether Enron Corp. conducted illegal reciprocal energy
trades, dubbed wash trades by regulators.
Swaps were used by at least 20 public
companies. Some, including AOL Time Warner Inc., CMS Energy Corp. and Global
Crossing Ltd., the onetime telecom highflier now in bankruptcy proceedings,
are under federal investigation.
'A Normal Part of Operations'
It's no accident that the swaps frenzy
sprung up in industries with newfangled, intangible products. After all,
putting a price tag on online ads, energy or telecom-transmission contracts,
and moving them back and forth, is a lot trickier than dealing with a fleet
of trucks or a cement plant. Swaps essentially involved "manipulating an
abstraction," says Andrew Lipman, a telecom attorney in Washington. "These
swaps morphed into devices to satisfy the God of quarterly performance."
![[chart]](images/swap_FZ11212222002211147.gif)
Along the way, the reciprocal deals
became an accepted part of a business culture obsessed with revenue growth.
"If we're one of their big customers, we expect them to be one of our big
customers," Robert Pittman, then co-chief operating officer of AOL's America
Online unit, said in an interview last year. One AOL executive even
approached the operator of subsidiary Time Inc.'s cafeteria about buying
online ads in return for AOL's continued business. The company, Compass
Group North America, declined.
And while Wall Street types are now
griping that they were deceived by these arrangements, until recently they
were applauding swap deals and the companies that favored them. In a
research report in 2001, a Goldman Sachs telecom analyst downplayed Global
Crossing's collapsing stock price. He wrote that the company's swaps "make
sense, they are a normal part of operations .... the accounting is
correct.'' The company filed for Chapter 11 protection in January.
Swaps have been around since Old
Testament days, when Joseph traded food for the horses and donkeys of hungry
Egyptians. When it comes to business history, the practice has been less
noble. In the 1980s, corrupt savings and loans traded real estate back and
forth at increasingly overblown prices. This was known as trading "a dead
horse for a dead cow.''
The telecom industry for decades got
around the expense of building fiber-optic lines by exchanging access to
each other's networks, known in telecom lingo as trading capacity. Each year
starting in 1975 at the Global Traffic Meeting in Washington, a club of
about 200 telecom officials made deals to exchange millions of minutes of
voice traffic. Those deals were legal and companies usually didn't record
revenue from the trades.
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GREAT MOMENTS IN THE
HISTORY OF SWAPS


Old Testament, Genesis 47
As adviser to Pharaoh, Joseph trades food for horses, donkeys and
land of famished Egyptians. He later lets them use the land in
exchange for 20% tax.
1626
According to legend, Peter Minuit, an agent for the Dutch West
India Company, swaps wampum beads, metal knives and wool
blankets for island of Manhattan.
1980s
During savings and loan scandals, land speculators swap
property back and forth at increasingly inflated values. They
call it "swapping a dead horse for a dead cow."
1992
A trader at commodities firm Mitsubishi creates false
profits by repeatedly buying and selling mispriced wheat
contracts at Minneapolis Grain Exchange.
1998
In a $1 billion deal, Williams Communications and Winstar
Communications trade long-distance and local telecom
access. This is widely regarded as the deal that starts
the telecom swapping craze.
2001
CMS Energy and Dynegy simultaneously execute two sets of
massive electricity trades worth $1.7 billion on
Dynegy's online trading platform. They cancel each other
out, but boost trading volumes on the platform.
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Everything changed when the industry was
deregulated, starting in the mid-1990s. Telecom companies bloomed, laying
miles of new fiber. By late 2000 it became obvious that there was nowhere
near enough customer demand to use up all the capacity.
Stoking the Telecom Fires
"Everyone was scratching their heads
about how to make the numbers," recalls Derek Gill, a former vice president
at 360networks, which filed for bankruptcy in June 2001.
A Canadian telecom
builder, 360networks held what salespeople dubbed "stoke the fire" meetings,
another former 360networks employee says. They stood up before top
executives and listed closed deals and sales prospects. People who didn't
deliver their quotas "were considered failures," adds Mr. Gill. "I talked to
my friends across the industry and no one was selling.''
That's when swaps began to take on an
entirely new motive: adding revenue onto quarterly financial results. Facing
mounting pressure in late 2000 and early 2001, telecoms turned each other
into their best customers. It was an industry in which competing executives
were already close.
They had worked and played together at events such as
the annual meeting of the Pacific Telecommunications Council in Honolulu,
which featured fireworks and a bare-chested, drum-banging Hawaiian dance
troupe.
Global Crossing had a cozy relationship
with Qwest. In 1999 and 2000, they bought assets from one another that their
engineers had requested to meet specific needs. By 2001, Global Crossing
began doing deals to acquire what it might need in the future. It started
booking revenue from the deals in 2000.
Qwest began booking revenue from swaps in
1999. A spokesman says that the company is cooperating with various federal
investigations. An attorney for Mr. Mohebbi, who is leaving his chief
operating officer post at Qwest this month, says his client didn't encourage
employees to break any rules.
Global Crossing sales executives reviewed
lists of the company's purchases of access from other telecoms and then
pressed those companies to reciprocate by buying access from Global
Crossing, a former official says. The company's dealmaking moved at such a
furious pace that an internal memo in July 2001 noted that "unfortunately,
little is known about what we actually acquired in past deals.''
"The buzz was that when we saw an
announcement for $300 million or $500 million, we thought it was b---s---,"
says John Shaban, an executive director at Emergia USA, a subsidiary of
Spain's Telefonica S.A. "The first question was, is it a swap? If it was,
who cares?"
Working Backward
At companies such as Global Crossing and
360networks, a lot of folks cared. In March 2001, 14 officials from the two
companies convened at the offices of Simpson, Thacher & Bartlett, Global
Crossing's New York law firm, to try to make an unwieldy deal work.
The idea was for Global Crossing to
exchange $150 million of its capacity between Asia and San Francisco for
$200 million of 360networks' capacity linking the U.S. and Europe. Both
sides would book revenue. But because Global Crossing was getting less
revenue, 360networks tentatively agreed that on a subsequent deal it would
spend more with Global Crossing, according to an e-mail written by a Global
Crossing executive.
Less than a year before, the companies
had signed a $180 million swaps agreement over late-night pizza. This time
around, the dealmaking was not so relaxed. "There was a subtext of
desperation," says a person who attended the two-day session. The rationale
for the deal, he says was "to make sure you met your numbers." The
companies, he says, were essentially working backward -- with a revenue
figure in mind first.
Global Crossing worried that 360networks
soon would file for bankruptcy-court protection. Simpson Thacher told Global
Crossing, its client, that if that happened, a judge might deny the company
its ownership rights to the capacity it was trying to secure.
Over the phone from the West Coast, 360
CEO Greg Maffei encouraged his New York team to close the deal, despite
Global Crossing's concerns, people familiar with the matter said. A
spokesperson for 360 declined to comment. The company recently emerged from
bankruptcy-court protection.
But Global Crossing also had an incentive
to go forward. If the deal didn't close, the company would not be able to
meet the projections it made to Wall Street. In a conference call the day
before the quarter ended, the executive committee of Global Crossing's board
approved the deal.
In an e-mail exchange about a month
later, Global Crossing executives discussed whether the company and 360
should swap back the same capacity they had just sold each other. That never
happened. And neither company ever used any of the capacity, according to
filings in Global Crossing's bankruptcy. The company declined to comment but
has said in the past that all its swaps had clear business purposes.
Accounting Follies
Back in the old days, say seven years
ago, the asset exchanges Global Crossing was pursuing would have produced
nary a blip on the company's financials. The exchanges of assets would have
essentially canceled each other out.
But by 2000, Global Crossing had embraced
a new accounting treatment for swaps that allowed it to book what it sold as
revenue. Moreover, it booked what it bought as a capital expense, which
doesn't show up in the operating results scrutinized by telecom analysts.
The trick was to make sure that the two companies exchanged separate cash
payments for each transaction.
The arrangement was the brainchild of
Arthur Andersen's Professional Standards Group, developed in response to a
flood of questions from telecoms. "They were much more operations- and
marketing-focused than accounting-focused,'' recalls an Andersen official.
"They needed help."
Arthur Andersen accountants began
advising clients to employ the new treatment by late 2000. Several months
later it was included in an update of an Andersen white paper on telecom
issues that was written in such dense accounting jargon that a member of
Qwest's audit committee wrote in an e-mail, "I highly recommend it as a
sedative."
Nevertheless, it became a must-read in
the telecom world. Eager to attract new clients, Andersen began making
presentations explaining its accounting interpretation to telecoms. "They
had this product. It almost was a cookbook recipe," says an attorney who sat
in on Andersen's hourlong Powerpoint presentation. Andersen spokesman
Patrick Dorton calls that characterization incorrect and says it reflects a
"lack of understanding about subjective accounting standards."
Some Andersen officials were wary about
the white paper. The Andersen team auditing Qwest wrote eight reports to the
company's chief financial officer and audit committee between 2000 and 2002
that among other things detailed the team members' worries about the
accounting treatment of swaps. In a presentation to Qwest's audit committee
on Oct. 24, 2001, the Andersen auditors described Qwest's swap accounting as
"maximum risk," according to minutes of the meeting. Still, the auditors and
the company's management signed off on Qwest's financial statements for 2000
and 2001.
Mr. Dorton, the Andersen spokesman, says
the auditors' advice was "entirely consistent with the white paper." He
added that because Qwest was founded as a construction company specializing
in laying fiber, and not strictly a telecom, only portions of the paper were
relevant.
Andersen officials say their firm was
issuing opinions at a time when there was no real guidance from
accounting-standards groups or the SEC on telecom accounting. In August the
SEC finally barred telecom swaps that create revenue.
Feeding the Dot-Com Frenzy
For revenue-hungry dot-coms, boosting
financials through round-trip deals was common. For a while it was even
legal. The commodity most often traded back and forth was online
advertisements. Many companies swapped the ads and booked revenue on the
deals even though not a penny changed hands.
When iVillage Inc., a Web site aimed at
women, went public in 1999, it disclosed that 20% of its revenue came from
round-trip trades of advertising. That year, 8% of Yahoo Inc.'s revenue came
from advertising trades.
But by year's end, it became harder for
Internet start-ups to use round-trip deals to generate revenue. That's
because the Financial Accounting Standards Board got wind of the practice
and issued tough guidelines. It warned that booking advertising-swap deals
as revenue "may lead to overstated revenues and artificially inflated market
capitalization.'' Henceforth it had to be disclosed as "barter revenues."
That didn't deter Homestore Inc.
executive vice president Peter Tafeen from searching for ways to make
round-trips work. Known within the company as "the Piranha," Mr. Tafeen
began hunting for solutions with Eric Keller, an America Online executive,
says a person familiar with the federal criminal investigation of Homestore,
an online real-estate company. The California State Teachers' Retirement
System has sued Homestore, AOL and Mr. Tafeen in federal court in Los
Angeles.
According to that civil suit, Mr. Tafeen
in March 2001 outlined his plans to Homestore's chief financial officer, who
has since pleaded guilty to criminal charges. Mr. Tafeen told the official
that he and Mr. Keller had plans for triangular deals that would help make
up for a projected $15 million shortfall in the company's quarterly revenue
goal, according to the suit. Mr. Tafeen allegedly said that the deals would
be structured so that auditors would not discover their true nature.
Lawyers familiar with the criminal probe
say that the two men used tiny software companies as cash conduits between
the two larger companies. Typically in these deals, Homestore would buy
products from a third company, which would then buy ads on America Online,
according to those lawyers. America Online would share the revenue with
Homestore. Prosecutors are scrutinizing 16 transactions involving America
Online and Homestore, the lawyers say.
Mr. Keller has been fired from America
Online and did not return phone calls. Robert Charles Friese, a lawyer for
Mr. Tafeen, said transactions his client worked on had legitimate business
purposes. Homestore and AOL declined to comment.
FinanCenter Inc., a small firm in Tucson,
Ariz., had pitched its software to Homestore in late 1999 without success.
Two years later, it got a call from Homestore vice president Bruce
Cornelius.
At first, Homestore expressed interest in
licensing FinanCenter's Web-based financial planning software. But in June,
Mr. Cornelius, who has left Homestore, began pushing the smaller company to
enter into an unusual arrangement, according to former FinanCenter
executives.
Homestore wanted to pay $3.75 million for
software valued at only $750,000. Then it wanted FinanCenter to spend $3
million buying ads on AOL, according to the former FinanCenter executives.
Mr. Cornelius declined to comment.
Darryl Reed, then a FinanCenter vice
president, says he wasn't completely against the America Online twist, but
he wanted it in the contract and the money placed in escrow. Homestore
balked.
"It was odd that the money was passing
through us,'' says Andria Poe, a former FinanCenter manager, who at one
point opened the company's office for a 3 a.m. meeting during a week of
frenzied negotiations.
The FinanCenter team worried that the
company might be on the hook for a $3.75 million refund, so Homestore
promised to put liability limits into the contract. But Ms. Poe rejected
that, fearing that the clauses wouldn't stand up in court. She was also put
off by Homestore's desire to backdate the contract.
Finally, FinanCenter president e-mailed
Homestore. "The truth be known we'd prefer to just license you the tools for
the $750k that we had originally planned," he wrote. Homestore didn't
respond and FinanCenter walked away from the deal.
Other small companies accepted similar
proposals from Homestore, including PurchasePro.com Inc. and Classmates
Online Inc., according to the civil suit. A Classmates spokesman says his
company's transactions with Homestore were valid from its perspective.
PurchasePro.com declined to comment.
Round-trip deals allowed Homestore to
inflate revenue by $46 million in 2001, according to prosecutors. Homestore
has restated a total of $164.4 million of revenue for 2000 and 2001. In
September, three former executives pleaded guilty to accounting fraud and
agreed to cooperate with prosecutors.
Keeping Up With Enron
With Enron so far ahead of the pack, many
of its energy-trading competitors were eager to find ways to catch up. For
some, round-trip trades were the answer. They simply traded equal amounts of
natural gas or electricity at the same time, for the same price. Then they
cited the artificially boosted trading volumes and revenue in press releases
and prospectuses touting their trading businesses.
For CMS Energy, a relatively small
trader, increasing volume was central to its goal of building the reputation
of its trading floor. At the end of 2001, Power Markets Week, a trade
publication, ranked CMS Energy 21st in terms of power sales in North
America, still way behind top-ranked Enron.
But most of CMS Energy's trades of 148.2
million megawatt hours of power during 2000 and 2001 weren't real. The
company made $5.2 billion of meaningless swap transactions.
Wash trades proliferated in the energy
business because the new wholesale energy markets are largely unregulated.
Commodity exchanges have rules barring the deals, but they don't apply on
off-exchange or over-the-counter energy markets. After lobbying by energy
companies such as Enron, legislation passed in 2000 exempted from oversight
most trading in over-the-counter energy markets. Federal energy and
financial regulators have jurisdiction in some cases of wrongdoing and are
probing wash trades.
In May, Reliant Resources Inc. disclosed
that about $6.4 billion in trades executed between 1999 and 2001 were wash
transactions. Duke Energy Corp. in August disclosed that it had conducted 89
wash trades, amounting to $217 million in revenue, in 2001 and 2002.
It turned out that 28 of those trades
were executed on a little watched online energy market, the
IntercontinentalExchange. ICE, as it is known, was founded in 2000, but it
suddenly became more popular with energy traders after the collapse of Enron
and its online exchange last year. Based in Atlanta, ICE is owned by 13
primary shareholders that include Duke, Goldman Sachs Group Inc., Morgan
Stanley, and BP PLC.
For owners, there was an incentive to
boost volumes on the exchange. People familiar with ICE agreements say that
companies could earn equity by pledging to conduct a set volume of trades on
the exchange, and that energy-trading owners could boost their stake by
increasing volume. Volume statistics also were heavily used in ICE's
marketing efforts.
Duke last summer fired two employees
after an internal review of its wash trades and has reorganized its trading
operations. A spokeswoman said Duke encouraged traders to use ICE but didn't
condone wash trades. She said that Duke's equity stake wasn't affected by
the wash trades.
A shareholders suit filed last month in
Houston against El Paso Corp., another ICE owner, alleges that executives
offered a monthly bonus of $10,000 to the trader who executed the most deals
on ICE. The suit, citing El Paso trading logs, lists six wash trades that El
Paso allegedly conducted on ICE. A spokesman says El Paso didn't make wash
trades.
An ICE spokesman said that ICE has
implemented procedures to weed out wash trades and believes they made up a
small percentage of volume.
Still, some of those trades have gotten
through. On Sept. 21, 2001, ICE sponsored a fund-raiser, in which a day's
commissions would go to victims of the Sept. 11 attacks. About $1 million
was raised.
But some of the volume was phony. Traders
for American Electric Power Co., an ICE co-owner, executed three sets of
wash trades with El Paso and Aquila Inc. on ICE that day, according to
filings the company made with regulators. An AEP spokesman said the trades
were made without top managers' approval.
Write to Dennis K. Berman at
dennis.berman@wsj.com5, Julia Angwin at julia.angwin@wsj.com6 and Chip Cummins at chip.cummins@wsj.com7
Updated December 23, 2002
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