Cold Comfort for Andersen, Caution for the Rest of Us
By E. Lawrence Barcella, Jr., Barry G. Sher and Richard C. Schoenstein
On May 31, 2005, the Supreme Court delivered a unanimous opinion reversing the conviction of Arthur Andersen LLP for its destruction of documents immediately preceding the SEC’s formal investigation of Enron Corporation’s financial circumstances. As is noted in our alert, the Court held that the jury had been improperly instructed as to the elements necessary to prove that a crime had been committed. The Court’s opinion, authored by Chief Justice Rehnquist, details the relevant burden of proof and can be read as providing some comfort for companies engaged in ordinary document retention procedures.