The U.S. Supreme Court heard arguments last week in the criminal prosecution of Arthur Andersen—a case which many see as an example of prosecutorial zeal that leaves companies in the dark about whether actions that are common practice today might be seen as unlawful tomorrow.
Andersen was convicted of witness tampering for conduct that took place when its client, Enron Corp., was the target of a looming investigation by the Securities and Exchange Commission in fall 2001. A major component of the government’s criminal investigation involved an email that Andersen’s in-house counsel sent to employees working on the Enron account, reminding them to follow the accounting firm’s lawful document retention policy. As a result, numerous documents were destroyed—although apparently at least one copy of every key Enron document was preserved.
